FRANQUESA FREIXAS v. SPAIN
Inadmissible
Georg Ress
The applicant [Ramón Franquesa Freixas] is a Spanish national who was born in 1943 and lives in Tarragona. He is a lawyer. In connection with criminal proceedings for misappropriation of assets, brought against the applicant by Barcelona investigating judge no. 18, the applicant was awarded legal aid and a lawyer was assigned by the court to assist him. At the public hearing of the case the applicant’s officially assigned lawyer raised an objection, as a preliminary issue, on the ground that the applicant had informed her that he no longer had confidence in her ability to represent him because she was specialised in labour law and not criminal law. She requested the judge to suspend the hearing In a judgment of 22 December 1997 Barcelona criminal-court judge no. 1 dismissed that objection on the ground that criminal law, as such, did not constitute a specialisation. He added that the applicant, who had not appointed a lawyer of his choice, had not expressed any intention to defend himself either. He also referred to the lawyer’s professional experience. On the merits, the court found the applicant guilty of the offence of misappropriation, sentenced him to four months’ imprisonment and ordered him to pay damages to the victim of the offence. The applicant appealed against that judgment to the Barcelona Audiencia Provincial. He disputed the judge’s legal classification of the offence with which he had been charged. A new lawyer – this time one matching his requirements – was appointed by that court to assist him. In a judgment of 9 July 1998, delivered after proceedings deemed to be inter partes, the Barcelona Audiencia Provincial dismissed the appeal and upheld the lower court’s judgment. That judgment was served on the applicant’s officially assigned lawyer on 2 September 1998. According to the applicant, the officially assigned lawyer did not send him a copy of the judgment upholding his conviction. The applicant therefore personally contacted the Audiencia Provincial asking it to serve the judgment of 9 July 1998 on him directly, which was done on 9 September 1998. On 23 October 1998 the applicant lodged an amparo appeal with the Constitutional Court. He relied on Article 24 of the Constitution (right to a fair trial). In his grounds in support of his amparo appeal, the applicant’s representative stated that the judgment of the Audiencia Provincial had been served personally on his client on 9 September 1998. In a decision of 6 May 1999 the Constitutional Court held the amparo appeal to be inadmissible on the ground that it had been lodged out of time. The court gave the following reasons for its decision: “As this court has stated on many occasions (see, among others, the decisions of the Constitutional Court 559/1984, 705/1986, 160/1987, 194/1989 and 223/1089), service of documents on the representative of a party to a trial shall produce the same effects as service on the represented party where section 44(2) of the Constitutional Court Act (CCA) does not require personal service for the purpose of calculating the relevant time-period. That is so irrespective of the fact that the rules of ordinary law can impose an additional requirement of serving judgments personally. Consequently, if account is taken of the fact, as can be seen from the file, that the appellate court’s judgment was served on the applicant’s lawyer on 2 September 1998, the amparo appeal of 23 October 1998 was lodged out of time because it was lodged long after the twenty-day time-limit provided for by section 44(2) of the CCA for lodging a constitutional appeal.” Constitutional Court Act “The time-limit for lodging an amparo appeal shall be twenty days from service of the decision delivered in the judicial proceedings.” Code of Criminal Procedure “Final judgments shall be delivered and served on the parties and their lawyers...”