Case of European Court of Human Rights, December 16, 2008 (case Bazo González v. Spain)

Resolution DateDecember 16, 2008

Information Note on the Court’s case-law No. 114

December 2008

Bazo González v. Spain - 30643/04

Judgment 16.12.2008 [Section III]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Public hearing

Lack of a public hearing before appellate court: no violation

Facts: In a judgment delivered after a public hearing in inter partes proceedings, the criminal court judge no. 1 acquitted the applicant of the charges against him for attempted cigarette smuggling. Counsel for the State and State Counsel's Office appealed. The applicant was invited to submit observations. Assisted by a lawyer, he objected to the appeal and sought confirmation of the impugned judgment, except in so far as it concerned the taking of evidence by the trial court. Neither party requested a public hearing and, considering it unnecessary, the Audiencia Provincial, in keeping with the Code of Criminal procedure, decided not to hold one. In adversarial proceedings the Audiencia Provincial allowed the appeal and, without changing the facts, convicted the applicant of attempted smuggling. It found that the trial court had misinterpreted the law and that the applicant’s actions could not be considered to have been decriminalised. The applicant lodged an amparo appeal with the Constitutional Court, which rejected it.

Law: That the applicant had been convicted by the Audiencia Provincial without having been heard in person was not in dispute. In order to determine whether there had been a violation of Article 6 of the Convention, therefore, it was necessary to examine the role of the Audiencia and the nature of the issues before it. Under Spanish law this court took evidence only exceptionally, and that was limited to evidence the applicant had not been able to submit at first instance, evidence that had been submitted but rejected without good reason, and evidence which had been declared admissible but not used at first instance for reasons beyond the applicant’s control. Furthermore, when there was no new evidence, it was for the Audiencia to decide whether or not to hold a public hearing in appeal proceedings, depending on whether it considered one necessary for a better understanding of the case. In this case it had been open to the Audiencia Provincial, as an appeal court, to deliver a new judgment on the merits, which it did. The scope of the examination carried out by the Audiencia in the instant case led the Court to consider that it had not been essential that a...

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