GARRIDO GUERRERO v. SPAIN
Inadmissible
The applicant [Mr José Antonio Garrido Guerrero] is a Spanish national who was born in 1941 and lives in San Fernando. He is a regular member of the armed forces (a ship's captain). He was represented before the Court by Mr G. Muñiz Vega, of the Madrid Bar. The facts of the case, as submitted by the parties, may be summarised as follows. In an order (auto de procesamiento) of 17 November 1993 investigating judge no. 1 of the Madrid Central Military Court (juez togado militar central) charged the applicant and another member of the armed forces with an offence against the Treasury (misappropriation for private use of fuel belonging to the navy, in breach of Article 195 § 1 of the Military Criminal Code). The investigating judge found, in particular, that there was evidence to warrant prosecution for an offence against the Treasury. The applicant appealed against the order to the Central Military Court which, in a decision (auto) of 21 March 1994, dismissed the appeal and upheld the impugned order. One of the judges on the bench that heard the appeal was D.R.G., a member of the armed forces' legal corps (vocal togado). In its decision the court pointed out the following: “According to the case-law established by the Constitutional Court ..., an order by means of which a person is charged is a provisional judicial decision of a purely procedural nature by which an accusation is made, and which must subsequently be the subject of adversarial proceedings and a judgment. Such a decision does not mean that the person charged is guilty, nor is it binding on the courts, which may decide not to proceed with the charges if the evidence on which they were based has ceased to exist.” Examining the facts of the case in which the applicant was involved, the court added: “... and, finally, the loss to the armed forces' budget, rationally amount to evidence of wilful conduct on the part of the accused, who was involved in acts of that nature. That conduct may at this initial stage be regarded as constituting the offence set out in Article 195 of the Military Criminal Code, without prejudice to such legal classification and reasoning as may subsequently be adopted when the merits are examined and a final judgment is delivered on the issue of guilt or innocence, regard being had to the fact that an order by which a person is charged is merely a provisional judicial decision of a procedural nature.” After the proceedings (juicio oral) began in the Central Military Court, P.G.B. was appointed as reporting judge and took various investigative measures. On 26 and 27 November 1996 the trial was held in public at the Central Military Court. The bench consisted of five judges: the presiding judge, D.R.G. and P.G.B. as judges from the armed forces' legal corps (vocales togados generales auditores), and two other members (vocales militares). In a judgment delivered on 13 December 1996 the Central Military Court found the applicant guilty as charged, sentenced him to one year's imprisonment and ordered him to pay damages to the State authorities in respect of his civil liability for an offence against the Treasury. The court held, inter alia, that the guilty verdict against the applicant had been based on a whole body of evidence that had been examined during the investigation and corroborated or adduced at the hearing – in particular, direct evidence such as expert reports, witness statements and documentary evidence. The applicant appealed on points of law to the Supreme Court. He submitted that the bench that had tried him could not be regarded as an impartial tribunal, firstly because D.R.G. had previously been a member of the bench that had ruled on his appeal against the order of 17 November 1993 in which he had been charged, and secondly because P.G.B. had, as the reporting judge, taken various investigative measures once the case had been sent for trial. The applicant also complained that the evidence had been assessed arbitrarily and that some of the prosecution evidence gathered during the investigation had not been produced at the trial but had been taken into consideration by the court, in breach of the adversarial principle and the presumption of innocence. In a judgment of 18 October 1997 the Supreme Court (Military Division) dismissed the appeal. With regard to the allegation that the trial court had been biased because D.R.G. had been one of the judges, the Supreme Court noted in its judgment that, according to the provisions of domestic law concerning the grounds on which judges might withdraw or be challenged and the relevant case-law, the fact that a judge had taken part in the adoption of a decision dismissing an appeal against a decision to bring charges could not in any way be regarded as an investigative measure capable of impairing (contaminar) the objective impartiality of the court which had to determine whether the person charged was guilty. As to the allegation that the court had been biased because P.G.B., as the reporting judge for the trial court, had taken certain investigative measures at the request of the prosecution, the Supreme Court observed that the judge had discharged the duties entrusted to him by law as the court's representative with a view to ensuring that direct evidence was obtained and that the court had direct knowledge of the investigative measures that needed to be carried out before the hearing. In respect of the complaint that there had been a breach of the adversarial principle and the presumption of innocence, the Supreme Court noted that at the hearing the applicant, who was assisted by his counsel, had examined the co-defendants, the witnesses and the experts and had put such questions as he had considered necessary for his defence. The Supreme Court found that his guilt had been established by the trial court on the basis of a whole body of evidence examined during the trial, in accordance with the principle that proceedings should be adversarial and public. The applicant then lodged an amparo appeal with the Constitutional Court, relying on his right to a fair hearing by an independent and impartial tribunal and on the principle of presumption of innocence (Article 24 of the Constitution). In a decision (auto) of 30 March 1998, served on the applicant on 6 April 1998, the Constitutional Court dismissed the appeal. As regards the complaint that the two judges in question had not been impartial, the court said that the applicant had been told the names of the judges on the trial bench (and thus those of the two judges in issue) and could have challenged them; having failed to do so, he had not exhausted domestic remedies. As to his other complaints, the Constitutional Court held that at the public hearing in the Central Military Court the defendants had appeared and given evidence, witnesses had been heard and various experts had given their opinions; the principle of presumption of innocence had been observed throughout. Article 24 of the Constitution provides: “1. Everyone shall have the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests; in no circumstances may there be any denial of defence rights. 2. Similarly, everyone has the right to [be heard by] an ordinary judge determined beforehand by law; everyone has the right to defend himself and to be assisted by a lawyer, to be informed of the charge against him, to have a trial in public without unreasonable delay and attended by all the safeguards, to adduce the evidence relevant to his defence, not to incriminate himself or to admit guilt and to be presumed innocent. ...” The relevant provisions of Institutional Law no. 2/1989 of 13 April 1989 concerning grounds for challenge read as follows: “Judges, presiding judges and other members of military courts ... shall not take part in judicial proceedings if any of the grounds set out in section 53 applies; if they do take part, [they] may be challenged.” “[A judge] shall withdraw or, if he does not do so, may be challenged on any of the following grounds: ... 5. if he has acted as counsel for or has represented one of the parties, has as a lawyer drawn up a report in the proceedings or similar proceedings, or has taken part in the proceedings on behalf of the prosecution or as an expert or ordinary witness; 6. if he is or has been a complainant against or accuser of one of the parties; a member of the armed forces who has merely processed the ... complaint initiating the proceedings shall not come within this subsection; ... 11. if he has taken part in the same proceedings in another capacity.” “... If the court or the judge considers that there is no justification for withdrawal, it or he shall order the person who has offered to withdraw to continue in the case, without prejudice to the parties' right of challenge. No appeal shall lie against such an order.” Section 56 provides that challenges must be made at the beginning of the proceedings or as soon as the person making the challenge becomes aware of the ground for challenge and in any event at least forty-eight hours before the hearing unless the ground comes to light subsequently. With respect to orders by means of which an accused is charged (auto de procesamiento) and to appeals against such orders, the Act provides: “Where there is reasonable evidence of guilt on the part of one or more identified persons, the investigating judge shall charge them ... The charges shall be brought by an order [auto], in which shall be mentioned the punishable acts the accused is alleged to have committed, the presumed offence constituted by those acts and the [relevant] statutory provisions ... followed by the charges and the measures relating to the accused's release or detention pending trial ...” “... The accused and the other parties may lodge an appeal, which shall have no suspensive effect, against the order by means of which the accused is charged within five days of [its] being served ...” “... if the appeal against the order by means of which the accused is charged is allowed ..., an order shall be made for the compiling of a separate case file ... and the issue of a comprehensive certificate concerning the impugned order and all the items which the judge considers necessary to include in the case file or which were referred to in the initial pleading on appeal.” In a judgment delivered on 14 November 1994 the Supreme Court gave a ruling on the circumstances in which a judge could be considered to have taken part in the same proceedings at an earlier stage for the purposes of a challenge under section 53(11) of the Military Court Proceedings Act. It held, inter alia: “A challenge to a judge [vocal] of a military court on the eleventh ground enumerated in section 53 of the Military Court Proceedings Act is only valid if the judge has taken investigative measures in connection with the case ... The mere fact of having dismissed an appeal against an order by means of which an accused is charged – a decision from which the only inference to be drawn is that the court does not disagree with the investigating judge's assessment of whether there is reasonable evidence of the accused's guilt – may not in any circumstances be regarded as an investigative measure capable of impairing the court's objective impartiality ...”