BEN SALAH ADRAQUI and DHAIME v. SPAIN
Inadmissible
The applicants [Mrs Habida Bent Abderrahmane Ben Salah Adraqui, Mr Jamal Dhaime, Mr Tarik Dhaime, Mr Bedrine Dhaime and Mr Hakime Dhaime] are Moroccan nationals who were born in 1948, 1963, 1969, 1971 and 1972 respectively and live in Roche-la-Molière (France). They were represented before the Court by Mr F. Puchol-Quixal y de Antón, a lawyer practising in Valencia (Spain). The facts of the case, as submitted by the parties, may be summarised as follows. On 22 August 1987 the first applicant’s husband, who was the father of the other applicants, died when he was knocked down by a motor vehicle in a road accident. The traffic police investigated the accident and heard evidence from witnesses, including the second applicant – the victim’s son – who had given his address in France. However, the record of his statement to the judge did not include that piece of information, indicating merely that he had no fixed address in Spain. The Fuengirola (Málaga) investigating judge opened a criminal investigation. In a decision of 27 August 1987 he ruled that the facts did not disclose the commission of a major offence (delito) but, being of the view that a minor offence (falta) might have been committed, forwarded the case file to the appropriate district judge (juzgado de distrito). On 22 January 1988 the Fuengirola district judge set the case down for trial on 18 March 1988. The applicants were summoned to the hearing by means of a notice published in the Official Gazette of the province of Malaga. As they lived in France, they were unaware of the summons. The public prosecutor appeared in court and submitted that the defendant should be acquitted. In a judgment of 21 March 1988 the district judge acquitted the driver of the vehicle responsible for the accident, on the ground that there was insufficient evidence to establish his guilt. On 12 October 1988 the judgment was published in the province’s Official Gazette. The applicants were not informed of the judgment. The applicants received no news of the proceedings and, after enquiring about the case reference, applied in writing on 13 November 1990 to be treated as parties to the proceedings and to be informed of their progress. On 27 November 1990 the district judge refused their application, on the ground that the proceedings had been terminated on 26 October 1988 (the judgment delivered on 21 March 1988 having subsequently become final as no appeal had been lodged). The applicants lodged an application to set aside (recurso de reforma) and, in the alternative, an appeal, seeking to have the impugned judgment declared null and void under section 240 of the Judicature Act. In a decision of 1 February 1991, served on the applicants on 6 February 1991, the Fuengirola investigating judge (who had inherited the duties of the former district courts) dismissed the application to set aside and found against the applicants, but he did, however, inform them, as regards the proceedings in connection with the minor offence of negligence causing the death of a member of their family, that hearings had been held, the defendant had been acquitted by the district judge on 21 March 1988, notice of that judgment had been given through its publication in the Official Gazette, the judgment had become final on 26 October 1988 and the proceedings had been terminated. The judge informed the applicants of their right to inspect the material in the file and directed that they should be sent copies of the documents they had requested. The appeal lodged in the alternative was also dismissed, pursuant to Article 217 of the Code of Criminal Procedure, as the law made no provision for such a remedy. On 20 March 1991, 30 March 1993 and 21 September 1994 the applicants sought enforcement of the decision of 1 February 1991, and on 8 November 1994 they received a copy of the case file. On 9 November 1994 the applicants lodged an appeal, seeking to have the proceedings that had taken place after the case had been set down for trial by the Fuengirola district judge declared void under section 240 of the Judicature Act. In a decision of 11 November 1994 the Fuengirola investigating judge ruled that the appeal was inadmissible, as the judgment appealed against had become final, “albeit without prejudice to the appellants’ right to apply to have the proceedings declared void by means of the appropriate procedure”. On 2 December 1994 the applicants accordingly lodged an appeal with the Constitutional Court (recurso de amparo), alleging that there had been a breach of Article 24 of the Constitution (right to a fair trial). Crown Counsel submitted that their amparo appeal should be allowed on the ground that the investigating judge had not made any attempt even to ascertain the address of the victim’s son who had made a statement, had not sought to trace the addresses of the other members of the victim’s family, and had not tried to keep the applicants informed of the proceedings in issue by any other means. He invited the Court to quash all the steps in the proceedings after the parties had been summoned to attend the trial. In a judgment of 22 January 1995, however, the Constitutional Court dismissed the appeal as being out of time, pointing out that by section 44(2) of the Constitutional Court Act, the amparo appeal should have been lodged within twenty days of the service of the investigating judge’s decision of 1 February 1991, in which the applicants had been informed of the course of the proceedings since the trial and of the defendant’s acquittal, the notice given of the judgment through its publication in the Official Gazette, and the fact that the judgment had become final and the proceedings had been terminated. The Constitutional Court referred to its settled case-law, according to which the time allowed for lodging an amparo appeal began to run at the point when those persons who should have appeared as parties to the proceedings in the ordinary courts had had sufficient notice of the existence and content of the judgment which they wished to challenge; that notice coincided with the service of the judgment. In the instant case, the relevant point in time had occurred on 6 February 1991, when the decision of 1 February 1991 had been served on the applicants. In spite of the content of that decision, which had informed them of the course of the proceedings, of the defendant’s acquittal, which had subsequently become final, and of the termination of the proceedings, the applicants had asked to inspect the case file and – after admittedly unjustifiable delays – had been sent the relevant documents and had then appealed against the acquittal, six years after it had become final. The Constitutional Court emphasised that by the time the applicants – assisted by a lawyer – had finally applied to it to protect their constitutional rights, their right of appeal had already lapsed. It added that they should have lodged an amparo appeal within the statutory period of twenty days from the date on which they had been informed of the existence and content of the judgment which had brought the proceedings in the ordinary courts to an end. Submitting an application to set aside once a judgment had already become final neither extended the time allowed by section 44(2) of the Constitutional Court Act for lodging an amparo appeal nor caused time to cease to run for that purpose. Nor could it be left to the appellants to determine the terminus a quo for themselves as they pleased. Without excusing or justifying the district judge’s lack of diligence, the Constitutional Court held that in view of its special nature as a remedy, the appeal should be dismissed as being out of time, but also drew attention to the remedies available for rectifying irregularities or malfunctions in the system of justice, noting that the facts of the case might “provide an effective basis on which to seek redress for non-pecuniary damage sustained and compensation for the malfunctioning of the criminal-justice system”. “1. All contentions that proceedings should automatically be declared void or that formal irregularities have occurred in procedural steps such that conditions essential for the fulfilment of their purpose have not been satisfied or such that a defence effectively becomes impossible shall be raised by means of the appeals provided by law against the decision in question or by the other means laid down in procedural laws. 2. Without prejudice to the foregoing provisions and proprio motu, a judge or court may, before a final decision has been issued, declare void all or some of the steps in the proceedings, provided that no compensation is payable and that the parties have been consulted.”