Case of European Court of Human Rights, March 10, 2009 (case Igual Coll v. Spain)

Resolution Date:March 10, 2009

Remainder inadmissible Violation of Art. 6-1 Pecuniary and non-pecuniary damage - award


Information Note on the Court’s case-law No. 117

March 2009

Igual Coll v. Spain - 37496/04

Judgment 10.3.2009 [Section III]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Lack of public hearing before court of appeal hearing an appeal on both factual and legal aspects of case: violation

Facts: In a judgment delivered after a public hearing which the applicant attended, the criminal court acquitted him of wilfully deserting his family by failing to pay maintenance. Although the maintenance had not been paid, the court considered that as the applicant was unemployed he had not defaulted on the payments intentionally but because he could not afford to pay. As the mens rea for the offence was lacking, there was no offence. The applicant’s former wife appealed and requested a public hearing. Without holding a public hearing, the appellate court (Audiencia Provincial) found the applicant guilty of wilfully deserting his family, and ordered him to serve eight weekends in prison and to pay the outstanding amounts plus legal costs. In particular, it accepted the facts considered to have been established at first instance and pointed out that the offence was that of failure to pay the maintenance fixed by the judge and, concerning the applicant’s personal circumstances, that the sum to be paid had been fixed after objective verification of the applicant’s means by the civil court which had settled the terms of the separation. It pointed out that the court had rejected the applicant’s request for the payments to be reduced as the applicant, an engineer, had not shown that it was impossible for him to find a job that would enable him to pay the maintenance. The AudienciaProvincial further noted that not only had the applicant failed to pay, but he had not taken any steps to pay his debt. In view of the documentary evidence in its possession, the AudienciaProvincial found that the mens rea for the offence was established and the applicant should accordingly be found guilty. The applicant appealed to the Constitutional Court, complaining that there had been no public hearing in the appeal proceedings. His appeal was dismissed. The Constitutional Court referred to its own case-law according to which the lack of a public hearing before a court of appeal having full jurisdiction could be justified in certain circumstances provided that a hearing had been held at first instance. The evidence that had been examined was not such that there had been...

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