OTEGI MONDRAGON AND OTHERS v. SPAIN

• Judgment Date: 06 November 2018
• ECLI: ECLI:CE:ECHR:2018:1106JUD000418415
• Respondent State: España
• Date: 06 November 2018
• Application Number: 4184/15;4317/15;4323/15;5028/15;5053/15
• Court: Third Section (European Court of Human Rights)
• Counsel: GOIRIZELAIA ORDORIKA J. ; PETER O. ; IRUIN SANZ I.
• Applied Rules: 6;6-1

THIRD SECTION

CASE OF OTEGI MONDRAGON AND OTHERS v. SPAIN

(Applications nos. 4184/15 and 4 other applications - see appended list)

JUDGMENT

STRASBOURG

6 November 2018

FINAL

06/02/2019

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Otegi Mondragon and Others v. Spain,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Vincent A. De Gaetano, President,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Jolien Schukking,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 16 October 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

11. The case originated in applications nos. 4184/15, 4317/15, 4323/15, 5028/15 and 5053/15 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 five Spanish nationals, Mr Arnaldo Otegi Mondragón, Mrs Jacinto García, Mr Díez Usabiaga, Mrs Zabaleta Tellería and Mr Rodríguez Torres (“the applicants”), on 14 January 2015.

2. The first, second, fourth and fifth applicants were represented by Mrs J. Goirizelaia Ordorika and Mr O. Peter, lawyers practising in Bilbao (Spain) and Genève (Switzerland), respectively. The third applicant was represented by Mr. Iruin Sanz, lawyer practicing in Donostia. The Spanish Government (“the Government”) were represented by their Agent, Mr R.A. León Cavero, State Attorney.

3. On 3 November 2015 the complaint concerning the right to a fair hearing before an impartial tribunal as guaranteed by Article 6 § 1 of the Convention was communicated to the Government and the remainder of the applications nos. 4184/15, 4317/15, 4323/15, 5028/15 and 5053/15 were declared inadmissible pursuant to Rule 54 § 1 of the Rules of Court. On the same date the Court decided to join the applications.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1958, 1977, 1956, 1981 and 1979, respectively (see appendix).

A. Previous proceedings before the Audiencia Nacional concerning the first applicant

5. On 2 March 2010 the first applicant was sentenced to two years’ imprisonment by a panel of the Fourth Section of the Audiencia Nacional for encouragement of terrorism (enaltecimiento del terrorismo). He was also acquitted of the charges of unlawful assembly and association (reunión ilícita y asociación ilítica).

6. The first applicant brought a cassation appeal before the Supreme Court, challenging, inter alia, the impartiality of the President of the Fourth Section of the Audiencia Nacional and judge rapporteur of that judgment (hereinafter “the presiding judge”), as she had displayed hostility towards him during those criminal proceedings.

7. In particular, the first applicant argued that during the oral hearing, and once the applicant had finished his statement, the presiding judge had asked him whether he condemned ETA’s (Euskadi Ta Askatasuna, the former armed Basque nationalist and separatist organisation) violence. The first applicant had refused to give an answer. The presiding judge had then replied that she “already knew that he was not going to give an answer to that question”.

8. On 2 February 2011 the Supreme Court ruled in favour of the first applicant, finding that the presiding judge’s declarations during the trial had cast doubts on the absence of prejudice or bias. The Supreme Court stressed the following:

“The significance of the Judge’s action...cannot be reduced to an isolated assessment of the question raised by her, yet it must be put in direct connection with the comment that she made after the appellant refused to give an answer, as well as the nature of the charges, their legal characterization and the moment the question and the answer take place...

The question put by the presiding judge and, very particularly, her reaction to the appellant’s refusal to give an answer, can be interpreted, from an objective perspective, as an expression of a previously formed opinion...about the significance assigned to the words spoken by the appellant...The appellant had objectives reasons to think that the judge was precipitately voicing out a value judgment on the criminal nature of [his statements]”

9. The Supreme Court, assessing the proceedings as a whole, found that there were “objective reasons” to consider that the presiding judge (and judge rapporteur of the case) was expressing a prejudice against the first applicant about the significance that should be given to the phrases...