PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 28 October 1996, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 25420/94) against the Kingdom of Spain lodged with the Commission under Article 25 by a Spanish national, Mr Manuel Tejedor García, on 4 August 1994. The Commission’s request referred to Articles 44 and 48 and to the declaration whereby Spain recognised the compulsory jurisdiction of the Court (Article 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 § 1 of the Convention.

In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicant designated the lawyers who would represent him (Rule 30). The lawyers were given leave by the President to use the Spanish language in the written procedure (Rule 27 § 3). On 4 March 1997 the President granted the applicant legal aid (Rule 4 of the Addendum to Rules of Court A).

The Chamber to be constituted included ex officio Mr J.M. Morenilla, the elected judge of Spanish nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 29 October 1996, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr N. Valticos, Sir John Freeland, Mr A.B. Baka, Mr G. Mifsud Bonnici, Mr J. Makarczyk and Mr T. Pantiru (Article 43 in fine of the Convention and Rule 21 § 5).

As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Spanish Government (“the Government”), the applicant’s lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 7 and 30 May 1997 respectively.

In accordance with the decision of the President, who had also given the Government’s representative leave to address the Court in Spanish (Rule 27 § 2), the hearing took place in public in the Human Rights Building, Strasbourg, on 25 September 1997. 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 the European Commission and European Court of Human Rights, Ministry of Justice, Agent; (b) for the Commission Mr F. Martínez, Delegate; (c) for the applicant Mrs N. Fernández Sola, professor at the University of Saragossa, Mr M. Marco Briz, of the Saragossa Bar, Counsel. The Court heard addresses by Mr Martínez, Mrs Fernández Sola and Mr Borrego Borrego. Mrs Fernández Sola submitted additional documents. Subsequently, Mr Thór Vilhjálmsson replaced, as President of the Chamber, Mr Ryssdal who was unable to take part in the further consideration of the case, and Mr I. Foighel, substitute judge, became a member of the Chamber (Rules 10, 22 § 1 and 24 § 1).

AS TO THE FACTS

I. circumstances of the case

Mr Tejedor García, who was born in 1948, now lives in Saragossa. At the material time, he was an officer in the national police force and lived at Mataró (Barcelona).

The facts underlying the procedure in issue were described in the judgment of the Saragossa Audiencia Provincial of 6 November 1991 (see paragraph 13 below), as follows: “The accused, Mr Manuel Tejedor García, who was born on 11 October 1948 and has no criminal record, was at the material time a police officer stationed in the Mataró (Barcelona) police station, in the region of Maresme, where a large number of coloured people live and work. On 21 May 1989, while off duty, he was in Gallur (Saragossa) where he joined members of his family and friends to celebrate his niece’s first communion. At about 8.30 p.m., after a banquet which followed the ceremony and at which he drank, in addition to the wine that accompanied the meal, three glasses of champagne, a cognac and two half-measures of cognac, – so that his alcohol level was high – he went with friends to the ‘Diodon’ café ..., where he noted the presence of Mr Karamo Jarra, a Gambian national, and Mr Leonel Pajucides Falçao, a Portuguese national. They were both coloured and had temporary work in a nearby village ... They went to Gallur to enjoy their weekly day off and were in the vicinity of the games room in the café. [The accused] asked them for their identity papers, which they agreed to produce. [They] showed him respectively a work permit ... and an identity card issued by the Portuguese Republic ... The accused, Mr Manuel Tejedor García, who was dressed in plain clothing, did not consider the documents satisfactory and, showing his police identification, drew his revolver ... and fired a shot into the ceiling of the café; approximately twenty people were present and left the premises in a frightened state. He then kicked Mr Leonel Pajucides in the testicles after throwing the latter’s identity card to the floor saying that it was ‘shit’. Pointing his revolver at the two Africans, he forced them to leave the café with their hands above their heads and took them, using the psychological pressure of the gun, to the guardia civil barracks, where, finally, he handed them over to the officers on duty. Before that, on the way from the café, near to the stairs leading up to the barracks, the accused ... hit Mr Karamo Jarra – who had slightly lowered his arms because of fatigue and in order to negotiate the rough ground – hard in the mouth with his revolver, cutting his upper and lower lips and causing him to lose two teeth, one of which was picked up by a passer-by at the scene of the assault, which was stained by the victim’s blood. These events provoked the indignation and disapproval of the people present who gathered round the police officer and his prisoners after following them from the café. [They] ultimately formed a group in front of the entrance to the guardia civil barracks, protesting against the events they had just witnessed and noting that the accused came out of the building in an aggressive manner on several occasions. Seeing that the situation was somewhat unusual, the officer in charge of the Gallur barracks informed his lieutenant, who immediately came over from Pedrola to take charge of the case. He checked whether the foreign nationals were lawfully resident in Spain and the identity papers they had produced; he then searched them. As no illegal substances or objects were found in their possession, they were released after making a statement and receiving medical attention. While the lieutenant was conducting his inquiry, the accused started a number of indeterminate incidents against the guardias civiles, who were obliged to disarm and handcuff him. At about 11.30 p.m. he was cautioned and, the following morning, at about 3 a.m. he was taken to Saragossa and brought before the duty investigating judge, who, after questioning him in the presence of the police lawyer, Mr Luis Saldaña Estevan, ordered his release.”

A preliminary inquiry was opened in respect of the applicant for wrongful arrest, assault and disobeying orders. On 29 May 1989 the investigating judge sent the case file to the Saragossa Audiencia Provincial, competent for criminal proceedings regarding members of the security forces. On 18 September 1989 the ANPU (Asociación Nacional de la Policía Uniformada), a professional association of police officers to which Mr Tejedor García belonged, and which was represented by Mr Gallego and defended by Mr Marco, brought a private prosecution (acusación particular) against the guardia civil officers of Gallur. It requested the court to declare that the applicant was innocent, and to investigate the responsibility of the two officers who had arrested him (see paragraph 7 above). On 28 November 1989 the Audiencia Provincial appointed one of its judges to pursue the investigation of the case. On 18 December 1989 Mr Tejedor García appeared before that judge, accompanied by Mr Marco, who said that he represented both the ANPU and the applicant. After the end of the investigation, the file was transmitted on 2 February 1990 to both the public prosecutor and the ANPU for their comments concerning the opening of oral hearings and committal for trial under Article 790 § 1 of the Code of Criminal Procedure (“CCP” – see paragraph 16 below). Following a judgment of the Constitutional Court declaring unconstitutional the provision by which criminal offences by security forces should be tried by the Audiencia Provincial the latter sent the case back to the Saragossa investigating judge.

On 10 September 1990 the investigating judge, having regard to the contradictory evidence as to the assault and the offer of drugs to the applicant, considered that no offence had been made out and decided, in accordance with Article 789 of the CCP (see paragraph 16 below), that no further action be taken (auto de archivo de las actuaciones). He directed that the case file was to be transmitted to the public prosecutor at the Audiencia Provincial of the town so that Article 789 § 5, no. 4, of the CCP could be complied with. Beneath the judge’s signature at the foot of the document, the registrar added: “Done shortly afterwards, to which fact I attest.” On the following day, the decision was served on Mr Gallego. However, no annotation appears on the file attesting service on the public prosecutor.

In an annotation of 7 November 1990 the registrar attested that the public prosecutor had returned the case file and lodged an application for the decision to be set aside (recurso de reforma) or, in the alternative, an appeal (see paragraph 16 below), dated 13 September 1990. In an order (providencia) of 8 November 1990 the investigating judge held that the application for an order setting aside the decision that no further action be taken had been made in the correct form. On the following day, that order was served on Mr Gallego. On 12 November 1990 Mr Gallego, on behalf of the ANPU, sought a declaration that the public prosecutor’s application be declared inadmissible because it had been lodged out of time (see paragraph 16 below) and confirmation of the decision of 10 September. That application, which the judge treated as having been made on behalf of Mr Tejedor García, was dismissed on the ground that it was not possible to make an application to set aside the impugned order, as it was merely a procedural formality. The judge did say, however, that Mr Gallego’s observations would be brought to the public prosecutor’s attention and be considered at the “appropriate time”. That decision was also served on Mr Gallego. In a decision (auto) of 4 December 1990 the investigating judge rejected Mr Gallego’s observations and held that the public prosecutor’s application had been made in time, on the ground that in the absence of any indication as to when the public prosecutor had received the decision of 10 September 1990 and the case file, the application had to be deemed to have been made within the statutory three-day time-limit (see paragraph 16 below). As to the merits he stated that it would be better to test the evidence at an adversarial public hearing.

On 12 February 1991 the investigating judge made a final discontinuance order (Articles 637 no. 2 and 790 no. 6 of the CCP) in respect of the two guardia civil officers accused by the ANPU. In the applicant’s case, he ordered an oral hearing and committed the applicant for trial in the Audiencia Provincial. On 20 February Mr Tejedor García appointed Mr Marco as his barrister (abogado) and Mr Gallego as his solicitor (procurador). On 14 March 1991 Mr Gallego filed a memorial on behalf of the ANPU, treated by the investigating judge as being the applicant’s defence.

After receiving the case file, the trial court noted that both the ANPU and the applicant were represented by Mr Gallego and requested him to clarify the situation. In a letter of 15 May 1991, Mr Gallego informed the Audiencia Provincial that, as the applicant alone had been committed for trial, he would be acting only for him. This was recorded in an order (providencia) of the Audiencia Provincial dated 22 May 1991.

On 6 November 1991 the Audiencia Provincial dismissed the preliminary objection that the public prosecutor’s application had been made out of time and found the applicant guilty of the alleged offences. It sentenced him to six months and fifteen days’ imprisonment, and a fine of 200,000 pesetas, and ordered him to pay compensation to the victims. He was also suspended from duty for six months.

On 12 November 1991 Mr Tejedor García appealed on points of law on the ground, inter alia, that the public prosecutor’s application against the decision of 10 September 1990 had been made out of time. On 28 May 1993 the Supreme Court dismissed the appeal. It found that there was nothing in the case file to show when it had been sent to the public prosecutor or when the public prosecutor had been served with the decision. In dismissing the appeal, the Supreme Court drew a distinction between a mere procedural error, which, as in the case before it, had not affected the rights of the defence, and a serious violation of a fundamental right. In its view, no violation of Article 24 § 1 of the Spanish Constitution existed in this case since: (a) the right of access to legal remedies required that the formal conditions for the exercise of those remedies be interpreted by judges employing criteria favourable to that right of access; (b) justice should prevail in order to avoid a denial of justice. Where applications to have a decision set aside or appeals were concerned, any interpretation that would unjustifiably prevent the case being judged on the merits should be rejected; and (c) in the case before it, the accused had had at his disposal every necessary means freely to defend himself against the accusations that had been made against him, at first instance and before the Supreme Court.

On 6 July 1993 the applicant filed a constitutional appeal (recurso de amparo), which the Constitutional Court dismissed on 21 February 1994. The Constitutional Court found that the appeal had no constitutional basis, because the applicant was seeking, by way of amparo, to appeal against the courts’ interpretation that the public prosecutor’s application had been lodged in time. That was an issue of pure law which was not susceptible of constitutional relief. It nevertheless considered the courts’ interpretation to have been justified and consistent with its case-law. Since the exact date of receipt of the case file in the public prosecutor’s office could not be determined, the Supreme Court, and before it the investigating judge, adopted the interpretation which was more favourable to the admissibility of the application on the basis of a broad interpretation of the provisions of the CCP.