Incorrect application of a decision of the ECtHR in revision proceeding for violation of a fair trial! New violation of the ECHR
JUDGMENT
Serrano Contreras v. Spain 26.10.2021 (no. 2) (app. no. 2236/19)
SUMMARY
Mandatory validity of ECHR decisions in accordance with Article 46 of the ECHR.
On the occasion of the distortion of a decision of the ECtHR by the defendant state, the Court reiterated that its decisions have binding force. States are free to choose the means to be used to comply with them, but the goal must be achieved, which is to return the applicant to the position he was in before the breach was discovered.
In the present case the applicant had been convicted of three offenses (forgery of commercial documents, forgery against the State and fraud). The ECtHR found a fair trial due to his conviction without a hearing, however the defendant State, in reopening the case, applied the ECtHR ruling to only one offense despite the fact that the overall domestic court proceedings which had led to the the conviction was not fair.
The applicant again brought an action for breach of the fair trial.
The ECtHR found that the domestic Supreme Court had arbitrarily held that its decision concerned one of the three offenses convicted by the applicant, despite the fact that the Court had left no doubt as to the extent of the infringement. It held that the defendant State had exceeded the margin of appreciation and distorted the conclusions of its decision, thus again violating Article 6§1 of the ECHR.
The Court awarded EUR 9,600 in respect of non-pecuniary damage and EUR 6,452 in respect of costs and expenses.
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Bernardo Serrano Contreras, is a Spanish national who was born in 1953 and lives in
Fernán Núñez (Córdoba, Spain).
The case concerns the revision of the applicant’s criminal conviction, after the European Court’s
finding of a violation of Article 6 § 1 (right to a fair trial) in its judgment of 20 March 2012. In the
revision proceedings, the Supreme Court quashed the applicant’s conviction in respect of one of the
offences, but dismissed the application for revision in respect of his conviction for the other two
offences.
Relying on Article 6 § 1, the applicant complains that the Supreme Court had not made a reasonable
interpretation of the European Court’s judgment and that, as a result, the conclusion reached in its
new judgment had not accorded with the Court’s findings, in breach of his fair-trial rights.
THE DECISION OF THE COURT…
Article 6 § 1 : (a) Admissibility
The Government had argued that a new judgment finding Spain to be in breach of the Convention on the same grounds as in the judgment of March 2012 would interfere with the non bis in idem principle. Although the application was undoubtedly connected with the execution of the Court’s judgment of March 2012, the complaint regarding the unfairness of the subsequent judicial proceedings before the Supreme Court both concerned a situation distinct from that examined in that judgment and contained relevant new information relating to issues undecided by that judgment. The “new issue” that the Court had authority to examine concerned the alleged unfairness of the revision proceedings before the Supreme Court in that, in view of the Court’s judgment of March 2012, it had annulled the applicant’s conviction in respect of the offence of forgery of official documents, while upholding his convictions for fraud and forgery of commercial documents. Accordingly, the Court was not prevented by Article 46 of the Convention from examining the applicant’s new complaint concerning the unfairness of the proceedings leading to the judgment of the Supreme Court of May 2015.
Concerning the applicability ratione materiae of Article 6 § 1, under the Spanish legal system, applicants are provided under section 954 the Criminal Procedure Act with a remedy entailing the possibility of a revision of a final judgment after the finding of a violation by the Court, as long as the effects of that violation could not be remedied in any way other than by such a judicial revision. In the context of that examination under section 954, the Supreme Court’s task is to consider the outcome of the terminated domestic proceedings in relation to the findings of the Court and, where appropriate, order the re-examination of the case with a view to securing a fresh determination of the criminal charge against the injured party. The examination on the basis of section 954 is therefore likely to be decisive for the determination of a criminal charge. Given the scope of the Supreme Court’s scrutiny in the present case, the Court considered that it should be regarded as an extension of the criminal proceedings against the applicant. The Supreme Court had once again focused on the determination, within the meaning of Article 6 § 1, of the criminal charge against the applicant. Consequently, the safeguards of Article 6 § 1 had been applicable to the proceedings before the Supreme Court.
(b) Merits
In the present case, the “new issue” brought before the Court was the interpretation made by the Supreme Court of the Court’s judgment of March 2012, within the framework of the applicant’s request for the reopening of proceedings. The issue of the applicant’s conviction on the basis of evidence not directly examined by the Supreme Court had been the object of the Court’s previous judgment, and the Court was prevented by Article 46 of the Convention from undertaking a fresh examination of the same issue. The Supreme Court’s judgment of May 2015 had not freshly convicted the applicant; rather, it had upheld the previous conviction in respect of two of the offences, on the basis of the Supreme Court’s own interpretation of the Court’s judgment of March 2012.
As regards the Supreme Court’s reasoning, it had correctly stated that the finding of a violation by the Court did not give rise to any automatic right to the reopening of proceedings and that it might even be possible to remedy a violation found by the Court by means of a partial reopening of proceedings, as the Supreme Court envisaged in the present case. Nevertheless, where, in its examination of an extraordinary remedy, a domestic court determines a criminal charge and gives reasons for its decision, those reasons must satisfy the requirements of Article 6 § 1 (Moreira Ferreira v Portugal (no. 2) [GC]). In cases as the present one, the domestic court’s presentation of the Court’s earlier findings should not be grossly arbitrary or even amount to denial of justice, resulting in an effect of defeating the applicant’s attempt to have the proceedings against him examined in the light of the Court’s judgment in his previous case (mutatis mutandis, Bochan v. Ukraine (no. 2) [GC]).
In order to decide on the applicant’s application for revision, the Supreme Court had extensively examined the grounds for his conviction contained in its judgment of 2005. On that basis the Supreme Court had considered that the applicant’s convictions for fraud and forgery of commercial documents had not entailed any breach of Article 6 § 1 and that, for that reason, the Court’s findings in the judgment of March 2012 could only apply to his conviction for forgery of official documents. However, the question whether the applicant’s convictions had complied with Article 6 § 1 had actually been the object of the Court’s judgment of 2012. That issue had been settled, in the Court’s view with sufficient clarity. It followed that, despite the margin of appreciation that the national authorities enjoy when deciding on the reopening of proceedings, the Court’s findings in its earlier judgment should have been respected.
In its judgment of March 2012, the Court had found a violation of Article 6 § 1 on account of the applicant’s conviction by the Supreme Court on the basis of deductions arising from the findings of fact, as established by the court at first instance, without the Supreme Court having heard the applicant in person. In the judgment of March 2012, the Court had referred to the proceedings before the Supreme Court as a whole and had made no distinction as to whether the findings concerned only some of the convictions and not the others. Nonetheless, elsewhere in that judgment, the Court had specifically mentioned elements that had clearly addressed either the applicant’s conviction for forgery of official documents, his conviction for fraud or his conviction for forgery of commercial documents. Those statements had left no doubt as to the scope of the Court’s finding of a violation. Therefore, the Supreme Court’s interpretation, namely that the violation of Article 6 § 1 found by the Court had concerned only the offence of forgery of official documents, had contradicted the findings of the Court in its earlier judgment in the applicant’s case.
Thus, the Supreme Court, when making its own interpretation as to the scope and meaning of the Court’s findings in the judgment of March 2012, had gone beyond the national authorities’ margin of appreciation and distorted the conclusions of the Court’s judgment; the impugned proceedings had therefore fallen short of the requirements of a “fair trial” under Article 6 § 1.
Conclusion: violation (unanimously).
Article 41: EUR 9,600 in respect of non-pecuniary damage.
