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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GEA CATALÁN v. SPAIN - 19160/91 [1995] ECHR 6 (10 February 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/6.html
Cite as: 20 EHRR 266, [1995] ECHR 6, (1995) 20 EHRR 266
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In the case of Gea Catalán v. Spain (1),
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of Rules of
Court A (2), as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr R. Macdonald,
Mr A. Spielmann,
Mr J. De Meyer,
Mr I. Foighel,
Mr J.M. Morenilla,
Mr M.A. Lopes Rocha,
Mr B. Repik,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 28 October 1994 and
26 January 1995,
Delivers the following judgment, which was adopted on
the last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 10/1994/457/538. The first number is
the case's position on the list of cases referred to the Court
in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to
the Court since its creation and on the list of the
corresponding originating applications to the Commission.
2. Rules A apply to all cases referred to the Court before
the entry into force of Protocol No. 9 (P9) and thereafter
only to cases concerning States not bound by that Protocol
(P9). They correspond to the Rules that came into force on
1 January 1983, as amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on
11 March 1994, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 19160/91)
against the Kingdom of Spain lodged with the Commission under
Article 25 (art. 25) by a Spanish national,
Mr Francisco Gea Catalán, on 14 October 1991.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Spain
recognised the compulsory jurisdiction of the Court
(Article 46) (art. 46). The object of the request was to
obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations
under Article 6 para. 3 (a) (art. 6-3-a) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated
that he wished to take part in the proceedings and designated
the lawyer who would represent him (Rule 30). The President
of the Court gave the lawyer in question leave to use the
Spanish language (Rule 27 para. 3).
3. The Chamber to be constituted included ex officio
Mr J.M. Morenilla, the elected judge of Spanish nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal,
the President of the Court (Rule 21 para. 3 (b)). On
24 March 1994, in the presence of the Registrar, the President
drew by lot the names of the other seven members, namely
Mr F. Gölcüklü, Mr R. Macdonald, Mr A. Spielmann,
Mr J. De Meyer, Mr I. Foighel, Mr M.A. Lopes Rocha and
Mr B. Repik (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent
of the Spanish Government ("the Government"), the applicant's
lawyer and the Delegate of the Commission on the organisation
of the proceedings (Rules 37 para. 1 and 38). Pursuant to the
order made in consequence, the Registrar received the
Government's memorial on 27 July 1994. The applicant
submitted his claims for just satisfaction in a letter which
reached the registry on 19 October 1994. On 22 September 1994
the Secretary to the Commission had informed the Registrar
that the Delegate would submit his observations at the
hearing; prior to that date he had produced various documents
as requested by the Registrar on the President's instructions.
5. In accordance with the decision of the President, who
had also given the Agent of the Government leave to use the
Spanish language (Rule 27 para. 2), the hearing took place in
public in the Human Rights Building, Strasbourg, on
26 October 1994. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Borrego Borrego, Head of the Legal Department
for Human Rights, Ministry of Justice and
of the Interior, Agent;
(b) for the Commission
Mr F. Martínez, Delegate.
Mr C. Soliva Hernández, the applicant's lawyer,
informed the Registrar that he was unable to attend. The
Court heard addresses by Mr Borrego Borrego and Mr Martínez.
6. On 26 October 1994 the Chamber decided to dismiss the
applicant's claims for just satisfaction as out of time
(Rule 50 para. 1).
AS TO THE FACTS
I. Circumstances of the case
7. Mr Francisco Gea Catalán, who is a Spanish national,
lives in Barcelona.
8. In the first months of 1985, taking advantage of his
position as an employee of the Bank of Fomento, he caused the
bank to discount in his favour a number of bills of exchange
that he had himself drawn using false names. Once the
deception was discovered, the bank laid a complaint against
him. It also dismissed two other employees for failure to
exercise proper supervision and filed an application to join
the criminal proceedings brought against Mr Gea Catalán, as a
civil party seeking damages.
9. In a decision of 1 July 1986 Barcelona investigating
judge no. 21 found that the facts established by him
disclosed, inter alia, the offence of obtaining property by
deception as provided for in Articles 528 and 529 para. 7 of
the Criminal Code (see paragraph 17 below). He ordered the
applicant's committal for trial in the Barcelona Audiencia
Provincial.
10. In his pre-trial submissions (conclusiones
provisionales), the public prosecutor classified the acts of
which the applicant was accused as, inter alia, obtaining
property by deception within the meaning of Article 528 with
the especially aggravating ("muy cualificada") circumstance
provided for in paragraph 1 of Article 529 of the Criminal
Code (see paragraph 17 below).
As civil party, the bank lodged submissions which
essentially reproduced those of the public prosecutor.
11. At the hearing the public prosecutor and the civil
party confirmed their earlier submissions (conclusiones
definitivas).
12. In a judgment of 22 January 1988 the Audiencia
Provincial sentenced the applicant to, inter alia, two years
and four months' imprisonment on a count of obtaining property
by deception. It found that the offence had involved a sum of
5,610,150 pesetas, that it had damaged the reputation of the
bank and that it had resulted in the dismissal of two other
employees. The court therefore based the sentence on
paragraph 7 of Article 529 of the Criminal Code, finding that
there had been an especially aggravating circumstance.
13. Mr Gea Catalán lodged an appeal on points of law. He
relied on Article 24 para. 2 of the Constitution (see
paragraph 16 below), his complaint being essentially directed
at the fact that the aggravating circumstance provided for in
Article 529 para. 7 had been applied to him, without his being
given prior notice. In this connection he pointed out that
both the public prosecutor and the civil party had referred in
their submissions solely to paragraph 1 of that Article; this
discrepancy had infringed his defence rights.
14. On 7 November 1990 the Supreme Court (Tribunal Supremo)
dismissed his appeal. The discrepancy complained of by
Mr Gea Catalán had resulted from a mere clerical error that
had been easy to understand and to correct simply as a matter
of common sense and logic, given the absurdity of applying
paragraph 1 of Article 529 to the facts in issue.
15. The applicant filed an amparo appeal in the
Constitutional Court (Tribunal Constitucional) on the ground
that the rights of the defence had been infringed. This
appeal was dismissed on 6 May 1991 as not raising any
constitutional issue. The typing error that had resulted in
the reference to paragraph 1 of Article 529 rather than
paragraph 7 had altered neither the charge nor the facts
constituting the alleged offences. It followed that the
clerical error had had no effect on the rights of the defence.
II. Relevant domestic law
1. The Constitution
16. According to Article 24 of the Constitution,
"1. Everyone has the right to effective protection by
the judges and courts in the exercise of his rights and
his legitimate interests and in no circumstances may
there be any denial of defence rights.
2. Likewise, everyone has the right to be heard in a
court of ordinary jurisdiction, as determined by law,
to defend himself and be assisted by a lawyer, to be
informed of the charge against him, to have a public
trial without undue delay and attended by all the
safeguards, to adduce the evidence relevant to his
defence, not to make incriminating statements, not to
confess himself guilty and to be presumed innocent.
..."
2. The Criminal Code
17. Two provisions of the Criminal Code are relevant to the
present case:
Article 528
"Anyone who, with a view to pecuniary advantage,
engages in dishonest practices in order to deceive
another person into transferring property to the
latter's detriment or to the detriment of a third party
shall be guilty of the offence of obtaining property by
deception.
A person convicted of this offence shall be liable to a
term of imprisonment (arresto mayor) [from one month
and one day to six months] if the sum involved exceeds
30,000 pesetas. If there are found to be two or more
of the aggravating circumstances provided for in
Article 529 below or one especially aggravating
circumstance, the person convicted shall be sentenced
to a term of imprisonment (prisión menor) [from six
months and one day to six years] ...
Where only one of the aggravating circumstances
referred to in Article 529 is found to be established,
the term of imprisonment shall be in the range of the
maximum sentence available (grado máximo) [from four
months and one day to six months]."
Article 529
"The following circumstances shall be deemed to be
aggravating circumstances for the purposes of the
preceding Article:
1. Where the deception is practised by altering the
nature, quality or quantity of staple goods, dwellings
or any other goods of recognised social utility.
...
7. Where the deception is particularly serious in
terms of the sum involved."
PROCEEDINGS BEFORE THE COMMISSION
18. Mr Gea Catalán applied to the Commission on
14 October 1991. Relying on Article 6 para. 3 (a)
(art. 6-3-a) of the Convention, he complained that he had not
been informed of a component of the charge against him. He
also maintained that he had not had a fair hearing within a
reasonable time and that there had been a breach of the
principle of the presumption of innocence and of the
prohibition on imprisonment for debt (Article 6 paras. 1 and 2
of the Convention and Article 1 of Protocol No. 4) (art. 6-1,
art. 6-2, P4-1).
19. On 30 March 1993 the Commission declared the
application (no. 19160/91) admissible in respect of the first
complaint but inadmissible for the rest. In its report of
30 November 1993 (Article 31) (art. 31) it expressed the
unanimous opinion that there had been a violation of
Article 6 para. 3 (a) (art. 6-3-a). The full text of the
Commission's opinion and of the concurring opinion contained
in the report is reproduced as an annex to this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex
will appear only with the printed version of the judgment
(volume 309 of Series A of the Publications of the Court), but
a copy of the Commission's report is obtainable from the
registry.
_______________
GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
20. At the hearing, the Government requested the Court to
strike the case out of its list because of the applicant's
implied withdrawal and, in the alternative, to hold that the
facts of the case "could not amount to a violation of the
European Convention".
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
21. According to the Government, the applicant's inactivity
was tantamount to an implied withdrawal. After having
indicated that he wished to take part in the proceedings
before the Court, Mr Gea Catalán had neither lodged a memorial
nor appeared at the hearing and had submitted a claim for just
satisfaction well after the expiry of the time-limit laid down
in Rule 50 para. 1 of Rules of Court A. Such an attitude
should lead the Court to strike the case out of the list.
22. The Delegate of the Commission did not express a view
on this question.
23. Under Rule 49 para. 2:
"When the Chamber is informed of a friendly settlement,
arrangement or other fact of a kind to provide a
solution of the matter, it may, after consulting, if
necessary, the Parties, the Delegates of the Commission
and the applicant, strike the case out of the list.
The same shall apply where the circumstances warrant
the conclusion that the applicant does not intend to
pursue his complaints or if, for any other reason,
further examination of the case is not justified."
24. The Court notes that Mr Gea Catalán expressed the wish
to take part in the proceedings (see paragraph 2 above) and
that he submitted, albeit belatedly, a claim for just
satisfaction (see paragraph 6 above). It cannot therefore be
inferred that he did "not intend to pursue his complaints".
In addition, there has been neither a friendly
settlement, nor arrangement nor other fact of a kind to
provide a solution of the matter, so that the first sentence
of Rule 49 para. 2 is not applicable either (see the Bunkate
v. the Netherlands judgment of 26 May 1993, Series A
no. 248-B, p. 30, para. 19).
The objection must accordingly be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 para. 3 (a) (art. 6-3-a)
OF THE CONVENTION
25. Mr Gea Catalán alleged a violation of Article 6
para. 3 (a) (art. 6-3-a) of the Convention, which provides as
follows:
"Everyone charged with a criminal offence has the
following minimum rights:
(a) to be informed promptly, ... and in detail, of the
nature and cause of the accusation against him;"
The violation derived from the fact that he had been
sentenced on the basis of paragraph 7 of Article 529 of the
Criminal Code and not on the basis of paragraph 1 of that
Article, which had been relied on by the prosecuting authority
and the civil party.
26. The Commission shared that view. It considered that a
person charged with a criminal offence was entitled to be
informed not only of the material facts alleged against him
but also of their legal classification. Even if reference to
the aggravating circumstance provided for in paragraph 1 of
Article 529 could appear absurd, that would not automatically
entail the application of paragraph 7.
27. The Government affirmed, on the other hand, that the
applicant had been fully aware of all the components of the
charge against him, in particular because the facts cited by
the public prosecutor and the civil party had been identical
to those established by the investigating judge. Logically
only paragraph 7 could apply to those facts.
28. Like the Government, the Court considers that the
discrepancy complained of was clearly the result of a mere
clerical error, committed when the prosecution submissions
were typed and subsequently reproduced on various occasions by
the prosecuting authority and the civil party (see
paragraphs 10 and 11 above). Indeed that was also the view
taken by the Supreme Court and the Constitutional Court in
dismissing the applicant's appeal on points of law and his
amparo appeal (see paragraphs 13-15 above).
29. Having regard to the clarity of the legal
classification given to the findings of fact set out in the
investigating judge's committal order of 1 July 1986 (see
paragraph 9 above), the Court fails to see how Mr Gea Catalán
could complain that he had not been informed of all the
components of the charge, since the prosecution submissions
were based on the same facts (see paragraph 10 above).
Furthermore in the instant case it would, as the Supreme Court
rightly noted (see paragraph 14 above), have been absurd to
have applied paragraph 1 of Article 529 of the Criminal Code,
whereas the inference that it was paragraph 7 that applied,
although not an automatic conclusion, could at any event have
been arrived at through minimal recourse to logic.
30. In sum, the Court holds the applicant's complaint to be
unfounded and therefore finds that there has been no breach of
Article 6 para. 3 (a) (art. 6-3-a).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that there has been no breach of Article 6
para. 3 (a) (art. 6-3-a) of the Convention.
Done in English and in French, and delivered at a
public hearing in the Human Rights Building, Strasbourg, on
10 February 1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar