CASE OF GÓMEZ OLMEDA v. SPAIN
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1967 and lives in Plasencia. 6. On 3 January 2011 following a trial, the Plasencia criminal judge (juez de lo penal) no. 1 sentenced the applicant to six months’ imprisonment for serious disobedience to public authority (desobediencia grave a la autoridad). The applicant was acquitted of other charges against him, namely false accusation of a crime (calumnias), defamation (injurias) and concealment (encubrimiento). 7. The judge established that the applicant was the webmaster of an Internet forum on which defamatory messages against the complainants in the proceedings had been published, and that he had deliberately disregarded the request made to him by a police officer within the framework of the criminal investigation not to alter the messages in question. In fact, the applicant had proceeded to have the forum webpage removed altogether, despite the police officer’s request to leave it unchanged. As regards the charges for defamation and false accusation of a crime, the judge held that there were reasonable doubts as to whether the applicant had been aware of the messages in question before his police interview and that he should therefore be acquitted in that regard. It was also alleged that he had protected the individuals who had made the defamatory statements; however, the judge considered that he could not be found guilty of concealment as it had not been proved that he had been aware at the time of his police interview that it had been possible for him to have access to the Internet Protocol (IP) numbers of the participants on the forum. 8. Both the prosecution and defence appealed against the judgment before the Cáceres Audiencia Provincial. The applicant did not request a hearing, nor did the Audiencia Provincial order one. Instead, the court watched a video-recording of the trial. 9. On 16 May 2011 the Audiencia Provincial upheld the applicant’s conviction for serious disobedience to public authority and, unlike the first-instance judge, found him guilty of continuous and false accusation of a crime (delito continuado de calumnias). His punishment was a daily fine of 15 euros (EUR) for a period of eighteen months. He was also required to pay damages. In finding the applicant guilty, the appellate court stated that it had relied on the facts established by the first-instance judge and on the testimony given by the complainants, the applicant and the witnesses in the earlier trial. The court stated: “Fourth. The facts declared proved in the first-instance judgment constitute continuous and false accusation of a crime and defamation regulated and punished by section 205 and seq. of the Criminal Code in relation to section 74 of the same Code for which the defendant Jorge Gómez Olmeda should be declared guilty as a principal pursuant to sections 28 and 30 of the Code with the mitigating factor of undue delays pursuant to section 21 paragraph six of the Code. ... It is undisputed that documentary evidence does not require judicial immediacy for its assessment because it is written down and can be read and interpreted in the ’ brief and proved in the hearing, both with respect to what was written on the forum and the people against whom those expressions were directed. Those expressions imputed the commission of crimes to the complainants (sexual assault, sexual slavery of a person) and were detrimental to their fame and reputation to the extent that it is obvious that the imputations were serious in themselves and related to public understanding, which is an open-ended concept of which interpretation depends on the particular facts of the case. It is worth remembering that we are speaking here of a small town where everybody knows each other, where everybody runs into each other, where everybody attends the same places, where everyday life is routine and there is little room for novelties, where anything breaking the monotony is something which attracts public attention, where the genealogy of every inhabitant is known to the rest. For these reasons we find the applicant guilty of the crime of continuous and false accusation of a crime ...which he had been acquitted of at first instance. The applicant states that he was the administrator of the forum; that he did not log onto it very often; that he lacked computer skills and that he had removed some phrases and messages which in his view might be considered insulting for the purposes of the case now before us. We disagree with the accused when he states that he was unaware of what was written on the forum, the argument on which the first-instance judge relied to acquit him of false accusation of a crime and defamation. And we disagree for the following two reasons. Firstly, because it was part of his duties as the administrator of the forum to be aware of what was written on it, to the extent that he was its ‘censor’, so to speak, on account of the fact that he had created it; and secondly, because it is untrue that he was unaware of what was written on it, since he had removed some phrases and messages which were insulting to the complainants, thus proving that he had read what was written on the forum in question and demonstrating that he had regarded what was written there as insulting to a specific individual or individuals, which led him to the decision to remove what he regarded as defamatory or insulting.” 10. The applicant applied to the Audiencia Provincial to have the previous proceedings before it declared void. His application was dismissed on 29 September 2011 on the grounds that no legal provision had been infringed and none of his rights had been breached in those proceedings. 11. The applicant lodged an amparo appeal with the Constitutional Court. He cited Article 24 of the Constitution (right to a fair hearing), complaining that the Audiencia Provincial had convicted him on appeal without giving him the opportunity to plead his case in open court. 12. By a decision served on 13 March 2012 the Constitutional Court declared the applicant’s amparo appeal inadmissible as it had no special constitutional significance.