THIRD SECTION

CASE OF BLESA RODRÍGUEZ v. SPAIN

(Application no. 61131/12)

JUDGMENT

STRASBOURG

1 December 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Blesa Rodríguez v. Spain,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	George Nicolaou, President,
	Luis López Guerra,
	Helen Keller,
	Helena Jäderblom,
	Johannes Silvis,
	Dmitry Dedov,
	Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 3 November 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 61131/12) 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 Antonio Carlos Blesa Rodríguez (“the applicant”), on 7 September 2012.
2.  The applicant was represented by Mr J. Gómez de Liaño Botella, a lawyer practising in Madrid. The Spanish Government (“the Government”) were represented by their Agent, Mr F.A. Sanz Gandasegui, State Attorney.
3.  The applicant alleged that his case had not been heard by an impartial tribunal in breach of Article 6 § 1 of the Convention.
4.  On 18 December 2012 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1931 in Huercal-Overa, Almería and lives in La Laguna, Tenerife.
6.  On 27 May 2003 La Laguna University lodged a criminal complaint against the applicant, a professor at the university’s Faculty of Pharmacy, accusing him of committing forgery. The university claimed that the applicant had presented a falsified curriculum vitae in the framework of a public tender for the allocation of pharmaceutical establishment licences.
7.  On 6 February 2004, La Laguna investigating judge no. 1 ordered the suspension of the criminal investigation, considering that there were no objective reasons to believe that the crime had been committed.
8.  The university submitted an appeal to the Santa Cruz de Tenerife Audiencia Provincial. In a decision (auto) of 19 May 2006, the Audiencia Provincial allowed the appeal and quashed the investigating judge’s decision declaring the suspension of the criminal investigation, holding that additional investigation proceedings were necessary. The Audiencia Provincial’s chamber was composed of judges A. (president), S. and C.
9.  On 19 January 2008, La Laguna investigating judge no. 1 issued a decision (auto de transformación en procedimiento abreviado) confirming the conclusion of the investigatory stage and the continuation of the proceedings, and ordering the parties to submit their provisional pleadings. The applicant lodged an appeal against the decision. On 21 June 2008 an Audiencia Provincial chamber composed of judges S. (president), Sa., and C. declared the appeal inadmissible.
10.  On 8 June 2010 the Audiencia Provincial issued an order (providencia) that the applicant’s case be sent for trial. It was also indicated in the order that the bench of the Audiencia Provincial that would try the applicant would be composed of judges A. (president), S. and G.
11.  On 1 July 2010 the Audiencia Provincial held a preliminary hearing for the examination of evidence prior to trial. Contrary to what had been indicated in the Audiencia Provincial’s order of 8 June 2010, the trial bench was composed of A. (president), G. and Sa., the latter acting as substitute judge. The defence lawyer was informed at the beginning of the preliminary hearing that the composition of the Audiencia Provincial bench had been modified. The applicant claimed that he had not, however, been personally given the names of the judges sitting on the modified bench.
12.  On 15 and 20 July the trial hearing was held before the Audiencia Provincial’s bench. The judges sitting on it remained the same as in the preliminary hearing.
13.  On 27 July 2010 the same Audiencia Provincial bench found the applicant guilty of the offence as charged and sentenced him to three years and six months’ imprisonment, a suspension from office for the same period of time, and a fine of 25 euros (EUR) per day for eight months.
14.  The applicant appealed on points of law to the Supreme Court complaining, inter alia, of lack of impartiality on the part of two of the judges sitting on the Audiencial Provincial bench. The applicant claimed that Judge A., president of the chamber, had previously sat on the bench that had heard the appeal introduced by the private prosecutor against the suspension of the criminal investigation (see paragraph 8 above). The applicant further claimed that Judge Sa. had participated as a substitute judge in the proceedings brought by La Laguna University, while being at the same time an associate professor and an employee with administrative duties at that university. According to the applicant, his post at the university was incompatible with his role as a judge in the proceedings.
15.  On 20 May 2011 the Supreme Court ruled in the following terms. As regards Judge A., the Supreme Court found in particular that the applicant had failed to challenge the judge, even though he had had an opportunity to do so, having been informed of the composition of the bench when it was constituted on 8 June 2010. The Supreme Court pointed out that section 223(1) of the Organic Law on the Judiciary laid down the condition that the disqualification of a judge must be applied for as soon as the grounds for removal were known, failing which the application would be inadmissible.
The Supreme Court stated a fortiori that the decision of 19 May 2006 requesting additional investigation proceedings could not be perceived as a measure likely to undermine the objective impartiality of the trial court inasmuch as the Audiencia Provincial had confined itself to holding that the investigation had not been complete and that the proceedings had been closed by means of a unreasoned and hasty decision.
As regards Judge Sa., the Supreme Court noted that the defence lawyer had been informed for the first time about the new composition of the Audiencia Provincial bench at the beginning of the preliminary hearing of 1 July 2010, without any reasonable justification for such a belated communication. As to the substance of the complaint, the Supreme Court held that the circumstances alleged by the applicant did not fall within any of the grounds for challenging the composition of the trial bench prescribed by section 219 (9) (10) (16) of the Organic Law on the Judiciary, nor did they fall within the incompatibility grounds prescribed by section 389 of the Organic Law on the Judiciary. In particular, the Supreme Court found that the applicant had failed to demonstrate that Judge Sa. had any interest in the outcome of the proceedings. The fact that the judge was an associate professor at the university was not sufficient in that regard. The Supreme Court found that there was no indication that Judge Sa.’s relationship with the university had any connection or link with the substance of the criminal proceedings brought against the applicant.
16.  The Supreme Court however reduced the sentence imposed on the applicant by the Audiencia Provincial to one year and six months’ imprisonment (with suspension from office) and a fine of EUR 25 per day for four months, in view of the damage suffered by the applicant as a result of the excessive and unjustified duration of the criminal proceedings, which had lasted for more than seven years.
17.  The applicant filed an amparo appeal with the Constitutional Court complaining, inter alia, of a breach of his right to a fair hearing by an independent and impartial tribunal under article 24 §§ 1 and 2 of the Spanish Constitution. By an order (providencia) of 7 March 2012, the Constitutional Court declared the applicant’s amparo appeal inadmissible. The Constitutional Court found, in particular, that the applicant had failed to raise his complaints of lack of impartiality in the previous judicial proceedings (non-exhaustion of previous judicial remedies). The inadmissibility order was served on the applicant on 13 March 2012.
Article II.	II.  RELEVANT DOMESTIC LAW
18.  The relevant provision of the Spanish Constitution reads as follows:
Article 24
“1. Everyone has the right to effective protection by judges and the courts in the exercise of his rights and legitimate interests and in no circumstances may he be denied the possibility of defending himself.
2. Likewise, everyone has the right to be heard by a court established by law, the right to defence and to the assistance of a lawyer, the right to be informed of any charges brought against him, the right to a public trial without undue delay and with full guarantees, the right to make use of evidence relevant to his defence, the right not to incriminate himself and not to confess his guilt, and the right to be presumed innocent.”

19.  The relevant provisions of Organic Law 6/1985 on the Judiciary read as follows:
Section 217
“Judges and magistrates must withdraw and may, where appropriate, be challenged on the grounds prescribed by law.”
Section 219
“Grounds for withdrawal or, where appropriate, a challenge include:
...
9. Friendship or self-evident enmity between the juror and any of the parties.
10. The fact of having a direct or indirect interest in the dispute.
11. Having participated in the investigation stage of the proceedings or having rendered a decision on the merits in a previous instance.
16. Having held public office or an administrative post where he or she previously could have known about the dispute and form an opinion likely to undermine his or her due impartiality.
...”
Section 221
“A judge or magistrate who believes that he falls within the scope of one of the grounds set out in the preceding sections shall withdraw from the case without waiting to be challenged.
...”
Section 223
“A party wishing to challenge a judge must do so as soon as he becomes aware that a ground for challenge exists. If that party was aware of the ground for challenge prior to the dispute, he shall lodge his application at the start of the proceedings, failing which it shall be inadmissible.”
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
20.  The applicant complained that two out of the three judges on the Audiencia Provincial bench that had convicted him lacked subjective and objective impartiality. Firstly, the applicant stated that Judge A., who had presided over the Audiencia Provincial’s chamber, had already had to make a ruling in the case when he allowed the appeal lodged by the private prosecutor against the suspension of the criminal investigation. Secondly, the applicant claimed that Judge Sa. had participated as a substitute judge in the proceedings brought by La Laguna University, while being also an associate professor and employed to carry out administrative duties at that university. The applicant claimed that the relationship of professional and financial dependency that Judge Sa. had with that university was incompatible with his role as a substitute judge in the proceedings brought against the applicant. The applicant relied on Article 6 § 1 of the Convention.
21.  The relevant passage of that provision is worded as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
22.  The Government contested that argument.
Section 3.01	A.  Admissibility
23.  The Government claimed that the applicant had not exhausted domestic remedies as regards his complaints of impartiality in respect of both Judge A. and Judge Sa.
(a)	1.  As regards Judge A.
24.  The Government contended that the applicant had been informed that Judge A. was to sit on the Audiencia Provincial bench on 8 June 2010. Consequently, as found by the Supreme Court, the applicant could have challenged the impartiality of Judge A. before the trial began, which he did not. The applicant had therefore failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention and consequently his complaint should be declared inadmissible.
25.  The Government added that that conclusion could not be displaced by the fact that the Supreme Court had a fortiori stated in its judgment that the previous participation of Judge A. in the proceedings did not imply that the judge lacked impartiality. That remark had been made by the Supreme Court merely “for the sake of completeness”, without making any further analysis of the merits of the case.
26.  The applicant admitted that he had not challenged Judge A. in the proceedings. However, he argued that judges were obliged to withdraw on the grounds prescribed by section 217 of the Organic Law on the Judiciary. Thus, the onus to withdraw had been on Judge A. and he could not escape that obligation on the pretext that the applicant had not challenged him.
27.  The Court notes that both the Supreme Court and the Constitutional Court rejected the applicant’s complaint for not having first used available remedies. Furthermore, the Court shares the Government’s opinion that the Supreme Court’s a fortiori statement concerning the participation of Judge A. at the investigation stage of the proceedings was a mere observation.
28.  The applicant has not therefore exhausted domestic remedies in respect of his complaint of impartiality on the part of Judge A. This part of the application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
(b)	2.  As regards Judge Sa.
29.  The Government admitted that the Supreme Court had examined the applicant’s complaint on its merits. However, they claimed that, in view of the Constitutional Court’s order of 7 March 2012 rejecting the applicant’s amparo appeal (see paragraph 17), it must be considered that the applicant had not exhausted domestic remedies. In this regard, the Government added that the applicant had not applied for the disqualification of Judge Sa. after learning about the new composition of the trial bench on 1 July 2010.
30.  The applicant said that he could not be criticised for not challenging Sa. before the trial. He argued that the composition of the Audiencia Provincial bench had been modified without his having been informed about the identity of the three judges who were to sit on it. Indeed, he had only found out about their identities when he had read the Audiencia Provincial’s judgment.
31.  The Court observes that the applicant did not challenge Judge Sa. during the proceedings conducted by the Audiencia Provincial. He first raised his complaint of lack of impartiality after the judge in question had already taken part in the proceedings. However, the Court does not share the Government’s opinion that the aforementioned fact constitutes grounds for declaring the applicant’s complaint inadmissible. Notwithstanding the Constitutional Court’s order of 7 March 2012, the Court considers that the applicant raised his complaint as soon as he had become aware of the identity and the relevant circumstances of Judge Sa. Having regard to the difficulties the applicant encountered in finding out the identity and relevant circumstances of Judge Sa., the applicant cannot be reproached for the fact that he did not apply for the disqualification of Judge Sa. before the trial.
32.  The Court has also taken into account the following elements. Firstly, as stated by the Supreme Court, the defence lawyer (not even the applicant) was not advised of the new composition of the Audiencia Provincial bench until the beginning of the preliminary hearing of 1 July 2010, without any reasonable justification for such a belated communication.
33.  Secondly, as ascertained by the Court in the case of Pescador Valero v. Spain, no. 62435/00, ECHR 2003‑VII, the reasoning of which may be applied, mutatis mutandis, to the present case, the fact that the applicant and Judge Sa. had been working at the same university must not be construed as a presumption that the applicant knew or ought to have known Judge Sa. in his capacity as an associate professor prior to the trial. In this regard, the Court found that requiring the applicant to prove that he did not know the judge before the start of the proceedings would have subjected him to an excessive burden of proof (ibid., § 26). The Court also noted in that case that the Organic Law on the Judiciary obliged a judge falling within the scope of one of the grounds for withdrawal or challenge to withdraw from the case without waiting to be challenged (ibid., § 24).
34.  In view of the aforementioned considerations, and contrary to what was suggested by the Government, it must be considered that the applicant raised the complaint of lack of impartiality as soon as he was able to do so, namely by lodging his appeal on points of law before the Supreme Court. This conclusion is confirmed by the way the Supreme Court itself approached the matter fully examining the substance of the applicant’s complaint of lack of impartiality.
35.  It follows that the Government’s objection as regards Judge Sa. must be dismissed.
36.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
37.  The applicant claimed that the professional and financial relations between Judge Sa. and the university that had brought the criminal proceedings against him had infringed his right to an independent and impartial tribunal. He argued that Judge Sa. was an associate professor at the Faculty of Law and the Faculty of Philosophy and that, in that capacity, he was functionally dependent on the rector of the university. Besides his teaching activities as an associate professor, Judge Sa. also directed the Tomás y Valiente Chair (Cátedra) of La Laguna University; he was Secretary of the Law Sciences department and a member of the committee of the Erasmus scholarship programme of the Canary Islands Government.
38.  The Government considered that the applicant’s submission that the professional relationship that Judge Sa. had with the private prosecutor was incompatible with his role as substitute judge was groundless. The Supreme Court’s finding was that the above-mentioned circumstances, which had been already alleged by the applicant in the domestic proceedings, did not fall within any of the grounds for a judge withdrawing or being challenged prescribed by section 219 (9), (10) and (16) of the Organic Law on the Judiciary, nor did they fall within the incompatibility grounds prescribed by section 389 of that Law. The Government argued that it was for the domestic courts to interpret domestic legislation and that the State must be given a margin of appreciation in that respect.
39.  The Government also argued that the Supreme Court had concluded that the fact that Judge Sa. was an associate professor at the university did not suffice to demonstrate the existence of any interest on his part in the outcome of the proceedings.
Judge Sa. performed teaching and academic duties at the university on a part-time and non-exclusive contract. Those activities were in no way whatsoever connected with those constituting the dispute between the applicant and the university. Thus, it could not be assumed that the judge had an interest in the dispute. Otherwise, judges would have to refrain from participating in any dispute involving a university where they performed any teaching activity, which would constitute a disproportionate restriction.
40.  The Government contended that the Court’s findings in the case of Pescador Valero, cited above, were not applicable to the present case. In that case, the Court understood that there was a dependency relationship between the judge and the applicant, since the latter was director of administrative and service personnel at the university, a circumstance which was absent in the present case. The Government accordingly submitted that there had been no violation of Article 6 § 1 of the Convention.
41.  The Court reiterates that impartiality must be assessed both by means of a subjective test, which consists of seeking to determine the personal conviction of a particular judge in a given case, and by means of an objective test, which consists of ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, Morice v. France [GC], no. 29369/10, §§ 73-78, 23 April 2015; Pescador Valero v. Spain, cited above, § 21; and Thomann v. Switzerland, 10 June 1996, § 30, Reports of Judgments and Decisions 1996‑III).
42.  As regards the subjective aspect of impartiality, the Court notes that nothing in the present case indicated any actual prejudice or bias on the part of Judge Sa.
43.  There thus remains the objective test. Here, what must be determined is whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect, even appearances may be of some importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Castillo Algar v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3116, § 45). This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the applicant is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Pescador Valero, cited above, § 23; Ferrantelli and Santangelo v. Italy, 7 August 1996, pp. 951-52, § 58; Reports 1996-III, and Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000-XII).
44.  The Court must determine whether the applicant’s fears about the judge’s impartiality were legitimate, given the professional relations between the judge and the university that had brought the proceedings against the applicant, and whether those relations cast doubt on his objective impartiality. The judge was an associate professor and performed administrative duties for which he received income from the university. On these grounds, it must be deemed that the judge had had regular, close and remunerated professional relations with the university while performing his duties as a judge of Santa Cruz de Tenerife Audiencia Provincial. In the Court’s view, these circumstances serve objectively to justify the applicant’s apprehension that Judge Sa. lacked the requisite impartiality (see Pescador Valero, cited above, §§ 27-28).
45.  There has accordingly been a violation of Article 6 § 1 of the Convention as regards the requirements of an impartial tribunal.
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
46.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Section 4.01	A.  Damage
47.  The applicant sought an award for non-pecuniary damage in the application form, without claiming a specific sum and leaving the matter to the Court’s discretion. The Government submitted that it should be understood that the applicant had waived his right to obtain an award for just satisfaction, and asked the Court to make no award under this head.
48.  Having regard to all the circumstances of the case and on the basis of equity, as required by Article 41, the Court awards the applicant 4,000 euros (EUR) in respect of non-pecuniary damage.
Section 4.02	B.  Costs and expenses
49.  The applicant has failed to submit a specific claim for costs and expenses in accordance with Rule 60 of the Rules of Court.
50.  Accordingly, the Court considers that no award should be made under this head.
Section 4.03	C.  Default interest
51.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank plus three percentage points.
FOR THESE REASONS, THE COURT,
1.  Declares, by a majority, the complaint under Article 6 § 1 of the Convention relating to Judge A. inadmissible;

2.  Declares, unanimously, the complaint under Article 6 § 1 of the Convention relating to Judge Sa. admissible;

3.  Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention as regards the complaint under Article 6 § 1 of the Convention relating to Judge Sa;

4.  Holds, unanimously,
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 1 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Marialena Tsirli	George Nicolaou
	Deputy Registrar	President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.
G.N.
M.T.

PARTLY DISSENTING OPINION OF JUDGE DEDOV
I regret that I could not agree with the majority on one small issue (admissibility of complaint relating to impartiality of judge A.) which may, however, lead to serious consequences as regards access to the courts at domestic and international levels.

Domestic remedies and the absolute character of impartiality

Needless to say, the impartial court is a fundamental value for the maintaining of democracy and the rule of law. A violation of the right to a fair trial by an impartial court should normally lead to the annulment of the verdict on procedural grounds and the consequent rehearing of the case. Therefore, such a complaint should survive throughout the domestic proceedings.
In the present case, the applicant appealed to the Supreme Court and the Constitutional Court complaining of a lack of impartiality on the part of judges A. and Sa. Both supreme courts found that the applicant had failed to exhaust previous domestic remedies under section 223 of the Organic Law on the Judiciary, as he had not sought the judges’ withdrawal at the start of the proceedings.
There is too much inconsistency in the Chamber’s reaction to those developments. The Supreme Court stated that the decision by judge A. requesting additional investigation and the relationship with a university of judge Sa. could not have undermined the objective impartiality of those judges during the trial. However, the Chamber decided differently as to the admissibility of the applicant’s complaints in respect of each judge.
I believe that the absolute nature of the right to an impartial court requires examination of such a complaint at any stage of judicial supervision, because (i) a failure to challenge a judge’s presence in the trial court of first instance should not prevent the applicant from appealing on impartiality as a point of law before the national supreme courts, and (ii) because the national supreme courts continue to provide effective domestic remedies for the purposes of the proceedings before this Court. Therefore, the applicant has exhausted domestic remedies in respect of judge A.

Consistency with the case-law

There are some examples as to how impartiality could be examined on the merits without any barriers.
In Marguš v. Croatia ([GC], no. 4455/10, 27 May 2014) the Court (Chamber and Grand Chamber) examined the complaint on the merits and reiterated that the mere fact that a trial judge had made previous decisions concerning the same offence could not be found, in itself, to justify fears as to a lack of impartiality in respect of the pre-trial decisions. Moreover, in that case the applicant had used the domestic remedies only at the level of the Supreme Court (see paragraphs 24 and 84-89 of the Marguš judgment).
Paragraph 85 of the Marguš judgment refers, inter alia, to the decision of the Court in the case of Romero Martin v. Spain ((dec.), no. 32045/03, 12 June 2006) where the circumstances were similar to those of the present case (the applicant had not sought the withdrawal of judges in the lower courts), but where, by contrast, the national supreme courts and this Court examined the merits of the complaint on the basis of both subjective and objective criteria and found it unsubstantiated.
Lastly, in the Pinochet case (In Re Pinochet [1999] UKHL 52), the impartiality of one of the judges in the United Kingdom’s House of Lords was successfully challenged in spite of the fact that information about links between a participant and the judge was publicly available from the outset.

Principle

In the present case, I believe that participation in pre-trial decisions should not prevent the examination of the merits by the same judge, and I agree with the conclusion of the Supreme Court, which I cannot consider a “mere observation” as proposed by the majority in paragraph 27 of the judgment. However, the application of the same admissibility approach in another case could entail the risk that a violation of the right to a fair trial might never be found, even if the circumstances are evident.
It is clear from section 223 of the Organic Law on the Judiciary that the challenging of a judge’s participation can only be used as a procedural instrument within the proceedings in the trial court. After the decision is issued, the withdrawal of the judge from the trial is technically impossible. However, consequently, the applicant should not be prevented from using another procedural instrument, namely, an appeal on impartiality as a point of law.
As was stressed in the decision of the House of Lords, Pinochet’s “claim was based on the requirement that justice should be seen to be done as well as actually being done”. Justice is two-fold in this context: if there is a risk that the judge is biased, the applicant’s obligation to challenge the judge is balanced by the judge’s responsibility to withdraw from the case before the trial starts. But the protection of justice must not be forgotten afterwards, within the judicial supervisory review process.