CASE OF CANO MOYA v. SPAIN
Remainder inadmissible;Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1972 in Villahermosa (Ciudad Real) and is currently serving a prison sentence in Spain. 6. At the time of the facts the applicant was in prison on remand in Foncalent (Alicante). 7. On 20 October 2009 the applicant was found guilty of a disciplinary offence by the disciplinary board of Alicante Prison and punished under the General Prison Rules. The punishment was: four weekends in isolation for having threatened prison officers (Rule 108 (b)); twenty days without group recreational activities for having disobeyed the orders given by prison officers in the fulfilment of their duties (Rule 109 (b)); and twenty days without group recreational activities for having damaged prison property (Rule 109 (e)). 8. The applicant appealed against the sanction before the Comunidad Valenciana post-sentencing judge no. 2 (Juzgado de Vigilancia Penitenciaria n.o 2). 9. On 17 November 2009 the post-sentencing judge found partially in the applicant’s favour and revoked the sanction imposed under Rule 109 (b). 10. On 19 November 2009 a State agent in charge of judicial communications attempted unsuccessfully to serve the applicant in person with the post-sentencing judge’s decision. The applicant had been transferred to a prison in Villena (Alicante). 11. On 28 January 2010 the applicant was served in person with the post-sentencing judge’s decision of 17 November 2009. He signed an acknowledgment of receipt. 12. The applicant lodged a reforma appeal with the same post-sentencing judge, who on 18 February 2010 confirmed her previous decision. A copy of the decision on appeal was served on the applicant. He signed an acknowledgment of receipt. 13. The applicant lodged an amparo appeal with the Constitutional Court. He invoked Articles 20 (freedom of expression) and 24 (right to be presumed innocent) of the Constitution. 14. By a communication of 22 March 2010 the Constitutional Court asked the post-sentencing judge to provide it with a copy of the applicant’s case file. 15. On 12 April 2010 the post-sentencing judge transferred the applicant’s case file to the Constitutional Court. 16. By a decision of 30 September 2010 the Constitutional Court declared the applicant’s amparo appeal inadmissible as devoid of any special constitutional significance. That decision was served on the applicant on 7 October 2010. 17. On 22 December 2010 the applicant asked the post-sentencing judge for a copy of his case file for submission to the European Court of Human Rights. He relied on sections 234 and 454 of the Judicature Act (see paragraph 31 below). He did so from a prison in Zuera (Saragossa) to which he had been transferred. 18. On 4 January 2011 the applicant sent his first letter to the Court giving notice of his intention to lodge an application under Article 34 of the Convention. 19. On 14 January 2011 the Court’s Registry acknowledged receipt of the applicant’s letter and invited him to submit a duly completed application form by 11 March 2011. 20. On 26 January 2011 the post-sentencing judge refused the applicant’s request for a copy of his case file on the grounds that his case “was still pending before the Constitutional Court”. 21. On 2 February 2011 the applicant sent his application form to the Court. He raised complaints under Article 6 § 2 and Article 10 § 1 of the Convention. He enclosed a copy of the Constitutional Court’s decision declaring his amparo appeal inadmissible. He further referred to the post-sentencing judge’s decisions of 17 November 2009 and 18 February 2010 in field “17. Other decisions” of the application form. However, he did not enclose a copy of those decisions. 22. On 4 February 2011 the applicant sent a communication to the post-sentencing judge. He stated that the Constitutional Court had delivered a decision in his case on 30 September 2010; that he intended to initiate proceedings before the European Court of Human Rights; and that in order to do so he should be provided with a certified copy of his case file without delay and before the deadline of 11 March 2011. 23. On 22 February 2011 the post-sentencing judge’s registrar rejected the applicant’s request, referring to the decision of 12 April 2010 (see paragraph 15 above) and stating that the European Court of Human Rights had the power to request the case file itself. That decision was served on the applicant on 4 March 2011. 24. On 3 March 2011 the Court acknowledged receipt of the applicant’s application form and invited him to send in all relevant domestic decisions by 3 June 2011. 25. On 4 March 2011 the applicant informed the Court that he had unsuccessfully requested a certified copy of his complete case file from the post-sentencing judge. He complained that the domestic authorities were hindering his right to a defence. 26. On 14 March 2011 the applicant resubmitted his request for a copy of the whole case file to the post-sentencing judge. He referred to the Court’s letter of 3 March 2011. 27. On 1 April 2011 the post-sentencing judge rejected the applicant’s request and refused to provide him with a copy of his case file. She informed the applicant that, for the purposes of subsequent applications before other courts, those courts could request the case files from the domestic courts directly. That decision was served on the applicant on 6 April 2011. 28. On 7 April 2011 the applicant informed the Court that the post-sentencing judge had refused to provide him with a copy of his case file.