CCPR/C/145/D/3080/2017

GE.26-04057 (E) 300426 040526

Human Rights Committee

Decision adopted by the Committee under the Optional

Protocol, concerning communication No. 3080/2017*, **

Communication submitted by:

J.F.A.G. (represented by counsel, Diego

Fernández Fernández)

Alleged victim:

The author

State Party:

Spain

Date of communication:

25 May 2016 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State Party on 19 December 2017

Date of adoption of decision:

16 March 2026

Subject matter:

Fair trial of a person convicted of attempted

murder

Procedural issues:

Same matter examined under another procedure

of international investigation or settlement;

substantiation of claims; incompatibility ratione

materiae

Substantive issues:

Accused or convicted persons; criminal

conviction; criminal offence; right to appeal a

conviction and sentence; equality before courts

and tribunals; fair trial; presumption of

innocence; criminal procedure; competent,

independent and impartial tribunal

Article of the Covenant:

14

Articles of the Optional Protocol:

2, 3 and 5 (2) (a)

1.

The author of the communication is J.F.A.G., a national of Spain born in 1967. He

claims that the State Party has violated his rights under article 14 of the Covenant. The

Optional Protocol entered into force for the State Party on 25 April 1985. The author is

represented by counsel.

* Adopted by the Committee at its 145th session (2–19 March 2026).

** The following members of the Committee participated in the examination of the communication:

Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,

Laurence R. Helfer, Konstantin Korkelia, Dalia Leinarte, Bacre Waly Ndiaye, Hernán Quezada

Cabrera, Akmal Saidov, Ivan Šimonović, Soh Changrok, Tijana Šurlan, Teraya Koji, Hélène

Tigroudja and Imeru Tamerat Yigezu. Pursuant to rule 108 of the Committee’s rules of procedure,

Carlos Ramón Fernández Liesa did not participate in the examination of the communication.

United Nations

CCPR/C/145/D/3080/2017

International Covenant on

Civil and Political Rights

Distr.: General

31 March 2026

English

Original: Spanish

CCPR/C/145/D/3080/2017

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GE.26-04057

Facts as submitted by the author

2.1

On 15 September 2010, there was a violent altercation between the author and two

brothers (J. and F.) in which all three men sustained injuries of varying degrees of severity.

As a consequence, the author sustained a frontal skull fracture, an injury to the back of his

head and a cut to his left forearm. One of the brothers, J., sustained a skull fracture with a

contused laceration of the scalp, a cerebral contusion and a shoulder contusion. The other

brother, F., sustained a contusion and injury to his elbow.

2.2

On 17 September 2010, the Trial and Investigating Court No. 1 of Granada instituted

ordinary proceedings in connection with the altercation and decided to try the three

individuals as well as to take their initial statements.

2.3

On 29 October 2010, the author requested the Court to take a number of investigative

steps, including analysis of the blood on the machete allegedly used in the attack to determine

whether it matched that of the defendants.

2.4

On 23 November 2010, the Court denied all but the author’s request for the medical

records of the three defendants for the period 15 September–4 October 2010.

2.5

On 7 December 2010, the author filed a direct appeal against the decision. On 4 April

2011, the Provincial Court of Granada dismissed the appeal on procedural grounds, ruling

that the author could not file a direct appeal before filing an appeal for reconsideration.

2.6

On 2 June 2011, the author again requested the same measures in his brief containing

his preliminary conclusions. On 21 June 2011, he requested that the case be returned to the

Trial and Investigating Court so that it could rule on whether to take the steps he had

requested. On 19 July 2011, the Provincial Court of Granada rejected the request to institute

the investigative proceedings sought by the defendants. On 25 July 2011, the author filed an

appeal against that decision; the appeal was rejected on 25 November 2011.

2.7

On 2 December 2011, the Provincial Court upheld the decision of the Trial and

Investigating Court to close the preliminary investigation, declared the trial open and referred

the case to the Prosecution Service for it to describe the nature of the offence in writing and

submit the evidence it intended to use.

2.8

On 30 November 2012, the Provincial Court of Granada found that, with the exception

of the evidence that the author had requested be collected before the trial and a documentary

that was unlikely to shed light on how the events unfolded, all the evidence that had been

submitted was relevant. On 10 January 2012, the Provincial Court notified the author of its

ruling, informing him of the Prosecution Service’s assessment of the nature of the offence

and of the possibility of filing an appeal.

2.9

On 18 January 2012, the author initiated a private action against the two brothers,

describing the acts to which they had subjected him as constituting attempted murder, with

the aggravating circumstance of abuse of a position of superiority.1 On 25 January 2012, the

Provincial Court issued a ruling dismissing the private action filed by the author because he

was not a party to the proceedings as a plaintiff.

2.10

The author filed an appeal for reconsideration of this decision on 3 February 2012.

On 2 March 2012, the Provincial Court rejected the appeal on the grounds that the author had

not sought to be a party to the prosecution in the case.

2.11

The Public Prosecution Service appeared at the trial for the State, and the two brothers

appeared as private complainants. J. and the author appeared as defendants. On 23 April 2013,

after completing the relevant legal proceedings and holding a public trial, the Provincial

Court of Granada sentenced the author to 6 years in prison for the attempted murder of J. and

6 months for the bodily harm inflicted on F. In the same ruling, J. was acquitted of the charge

of attempted murder, and it was concluded that he was acting in justified self-defence, as the

1 Criminal proceedings in Spain take two different forms: those brought by the Public Prosecution

Service on the basis of legality and necessity and those initiated by private individuals, whether or not

they are victims of the crime (private prosecution).

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author, armed with the rest of the machete blade, had straddled F., and J. had no other less

harmful means of preventing the attack on his brother.

2.12

The Provincial Court noted that the difference, not always clear, between attempted

murder and assault with bodily injury depended not so much on the result as on the intent of

the perpetrator. It pointed to domestic case law according to which intent can be inferred

from a number of pieces of evidence, such as the relationship between the victim and the

perpetrator, the nature of the weapon and the relevant conduct or acts. The Provincial Court

referred to the statements made at the trial by the brothers and the author, the medical reports

and the characteristics of the machete. The accounts of the events offered by the brothers and

by the author contradicted each other, but the Provincial Court found that the brothers’

account, which was corroborated by their injuries, was credible. What the author said, on the

contrary, was clearly untrue.

2.13

On 24 June 2013, the author submitted to the Supreme Court an appeal in cassation

against the sentence handed down by the Provincial Court, alleging a violation of his rights

to be presumed innocent and to effective judicial protection, a breach of procedure under

article 850 (1) of the Criminal Procedure Act and a violation of the right to a fair trial.

2.14

On 12 March 2014, the Second Chamber of the Supreme Court dismissed the appeal.

2.15

On 20 May 2014, the author applied for a remedy of amparo. On 5 November 2014,

the Constitutional Court decided not to entertain the application on the grounds of the

manifest inexistence of a violation of a fundamental right warranting such a remedy.

2.16

On 6 May 2015, the author submitted an application on this matter to the European

Court of Human Rights. In his application, he invoked the rights to a fair trial and

non-discrimination under the Convention for the Protection of Human Rights and

Fundamental Freedoms (European Convention on Human Rights). On 25 June 2015, the

European Court of Human Rights, acting in single-judge formation, found the application

inadmissible for failure to meet the admissibility criteria set out in articles 34 and 35 of the

Convention.2

Complaint

3.1

The author maintains that the State Party has violated his article 14 rights to be

presumed innocent, to equality before courts and tribunals, to a fair trial and to review of his

conviction by a higher tribunal.

3.2

With regard to the presumption of innocence, sufficient justification for the judgment

handed down by the Provincial Court was not provided, and the judgment was not based on

all the evidence. It can be concluded simply by reading the judgment that the Provincial Court

of Granada had a preconceived notion that the author was guilty and that the brothers were

credible. The Provincial Court made no effort whatsoever to point to evidence for their

version of events. In the judgment, only part of the evidence, the statements made by the

accusers, is considered.

3.3

Furthermore, the author’s pretrial motion for the conduct of a series of evidentiary

procedures, including forensic analysis of the blood on the machete allegedly used in the

attack, was denied. With the identification of the DNA in the blood, and confirmation that it

was not the author’s, the case would have been resolved in his favour. But when the author

requested the DNA analysis, he was told that it was not possible to confirm that the substance

on the machete was blood. Furthermore, the Civil Guard did not examine the crime scene

visually or search the vehicle in which the brothers were travelling. The author had requested

that the Civil Guard produce a photographic report and a sketch of the scene because the

brothers maintained that the assault had occurred on the road that they were travelling on,

while the author placed it off the road, about 50 metres away. This request was repeatedly

denied. The author’s request, made to obtain objective information not connected to the

2 The European Court of Human Rights did not provide further information on the grounds for its

decision to find the application inadmissible.

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statements of those involved, for the identification of a boy who had been asked for help by

F.’s girlfriend was also denied.

3.4

The Supreme Court noted that the Provincial Court of Granada had found the brothers’

statements credible without explaining why. The Supreme Court nonetheless dismissed the

appeal in cassation, arguing that the Trial Court had, despite that shortcoming, made its

reasoning sufficiently clear to render judgment.

3.5

Likewise, the author’s right to a fair trial was violated, as he was not allowed to bring

a private prosecution against the brothers, despite having met the legal requirements to do so.

3.6

The author’s sentence and conviction were not reviewed by a higher tribunal. The

appeal in cassation provided for in the Criminal Procedure Act does not amount to review by

a higher tribunal because it involves nothing but a review of points of form or law in respect

of the contested judgment.3

State Party’s observations on admissibility and the merits

4.1

In its submissions of 9 March and 21 June 2018, the State Party insists that the

communication is inadmissible under article 5 (2) (a) of the Optional Protocol, as the

European Court of Human Rights has already examined the merits of the matter. The

Committee is requested to seek information from the Court on the scope of its examination

of the author’s application.

4.2

The claims concerning the private prosecution are inadmissible ratione materiae

under article 3 of the Optional Protocol. There is no right to bring a private prosecution under

article 14 of the Covenant.4 Article 14 (1) of the Covenant covers criminal charges brought

against a person or the determination, in a suit at law, of a person’s rights or obligations.

4.3

Furthermore, the communication is inadmissible under article 2 of the Optional

Protocol and is unfounded. Under article 110 of the Criminal Procedure Act, victims of a

crime or lesser criminal offence may become parties to the corresponding criminal

proceedings if, in proceedings for serious crimes, they do so before the prosecution’s

presentation of its preliminary conclusions or, in simplified proceedings, before the

indictment is filed. Upon the issuance of a procedural decision dated 3 January 2012, the

author was notified that the Public Prosecution Service had presented its preliminary

conclusions. The author did not exercise his right to contest the decision. The author’s case

against J. and F. was therefore dismissed in accordance with domestic procedural rules.

4.4

The author’s claim about the assessment of the inculpatory evidence by the Provincial

Court of Granada and the Supreme Court, and about the rejection of some of the evidence he

had requested, is also inadmissible. The author does not show that there is a manifest error in

the decision or that it is arbitrary or wholly irrational.

4.5

Upon assessing the evidence, the Provincial Court held that an attempted murder, the

victim of which was J., had been committed, as the delivery of a blow to the head with the

blade, approximately 50 cm long, of a machete could not be anything else, above all as the

author would have continued his attack had F. not stepped in. The Provincial Court relied on

the statements made by the author and both brothers and considered what was left of the

machete, which had caused J. a life-threatening skull fracture. According to the Provincial

Court, the brothers’ version of events was credible: their injuries corroborated their

statements. What the author said, on the contrary, was clearly untrue, since it was unclear

how J. could have sustained the injuries he had had he not been struck with the machete.

What sense it would have made for the brothers first to have assaulted the author unarmed

and then to have gone to the car, taken out an axe and a hoe and gone back to where the

author was to continue attacking him was also unclear.

4.6

In addition, the Supreme Court noted that the nature and severity of the primary injury

sustained by J. was fully compatible with the brothers’ description of the author’s actions.

According to the Supreme Court, these injuries would have been inexplicable under the

3 General comment No. 32 (2007) of the Committee, para. 48.

4 Cunillera Arias v. Spain (CCPR/C/102/D/1531/2006), para. 6.3.

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hypothesis suggested by the author – that is, that they were the result of an earlier struggle

with armed people. Furthermore, if the brothers had intended to commit such an assault on

their own initiative, it would not have made sense for them to do so unarmed, especially since

they had what they needed (the axe and the hoe) for an effective attack in favourable

conditions. Therefore, even though a specific examination of the aforementioned third-party

statements was lacking, those statements were made by people who did not witness the events,

the results of which, as has been demonstrated, are well established and practically speak for

themselves.

4.7

With regard to the rejection as unnecessary of the proposed expert evidence

(consisting of analysis of the blood on the machete belonging to the author), the Supreme

Court noted that, according to Spanish constitutional doctrine, the violation of the right to

consider relevant evidence falls within the scope of the Constitution only when it results in

real and effective defencelessness. In this respect, both the relevance and the significance of

the proposed evidence must be assessed.

4.8

Applying this constitutional doctrine to the present case, the Supreme Court “clearly”

ruled out the necessity and relevance of the proposed forensic evidence, as the very serious

injury sustained by J. could not have been caused in any way other than as described. In fact,

no one but the author could have been the perpetrator, and the injury was such that it had to

have been caused by a highly lethal implement such as the machete that, as it happened, had

been used in the altercation and belonged to the author.

4.9

In connection with article 14 (5) of the Covenant, the State Party refers to the

Committee’s jurisprudence, in which it has been found that a review undertaken on appeal in

cassation suffices.5

Author’s comments on the State Party’s observations on admissibility and merits

5.1

In his comments of 23 June and 5 December 2018, the author reiterates his arguments

on admissibility and maintains that article 14 (1) of the Covenant applies to all persons

appearing before a court and guarantees the equality of all persons before the law.6 The author

is seeking €30,000 in compensation. This amount is purely symbolic, as it is not enough to

compensate the author, even minimally, for the serious harm he has suffered.

5.2

The author was convicted on the strength of nothing but the statements of the alleged

victims, without objective corroboration. The courts did not evaluate exculpatory evidence,

which included medical reports showing that the author’s injuries were more serious than

those of the brothers, or contradictions in witness testimony. There was also no forensic

analysis of the DNA found on the machete. The author’s claim involved civil liability for

personal injury, which falls within the scope of article 14 (1) of the Covenant.

5.3

Numerous motions filed by the defence for the collection of evidence, such as for an

inspection of the crime scene, the deposition of key witnesses and the forensic analysis of the

blood on the weapon, were arbitrarily denied. The Trial Court’s reasoning, which was based

on rhetorical questions rather than legal analysis, was superficial. The burden of proof was

reversed: the author was presumed guilty unless he could prove otherwise.

5.4

The Committee has previously found that the State Party violated article 14 (5) of the

Covenant in similar cases.7 At the time of the events, there was no provision in Spanish law

for effective appeals against convictions handed down by provincial courts.

5 For example, Cuartero Casado v. Spain (CCPR/C/84/D/1399/2005), para. 4.4, Amador Amador and

Amador Amador v. Spain (CCPR/C/88/D/1181/2003), paras. 9.2 and 10, and Lozano Aráez et al. v.

Spain (CCPR/C/85/D/1323/2004), para. 4.3.

6 See Cunillera Arias v. Spain.

7 Semey v. Spain (CCPR/C/78/D/986/2001), para. 9.1, Sineiro Fernández v. Spain

(CCPR/C/78/D/1007/2001), para. 7, and Alba Cabriada v. Spain (CCPR/C/82/D/1101/2002),

para. 7.3.

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Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

6.2

The Committee notes the State Party’s argument that the communication is

inadmissible under article 5 (2) (a) of the Optional Protocol, when read in conjunction with

the State Party’s reservation thereto, which excludes the Committee’s competence in relation

to cases where the same matter has been or is being examined under another procedure of

international investigation or settlement. In this regard, the Committee recalls that its

jurisprudence establishes that when the European Court of Human Rights bases a declaration

of inadmissibility not solely on procedural grounds but also on grounds that include a certain

consideration of the merits of the case, the matter should be deemed to have been examined

within the meaning of the reservations to article 5 (2) (a) of the Optional Protocol.8 On

25 June 2015, the European Court of Human Rights, acting in single-judge formation, found

the author’s application, in which he asserted his right to a fair trial, inadmissible. The

Committee notes, however, that the European Court does not make specific arguments for

the finding of inadmissibility, so it is unclear whether the finding was based on procedural or

substantive grounds. The State Party requested the Committee to ask the European Court for

additional information on its reasoning. On receiving this request, the European Court

confirmed that it could not provide further information on the decisions of inadmissibility

made by a single judge pursuant to articles 34 and 35 of the European Convention on Human

Rights. Accordingly, the Committee is unable to conclude that, in this case, the same matter

has been examined by the European Court.9 The Committee is therefore of the view that it is

not precluded by article 5 (2) (a) of the Optional Protocol or the State Party’s reservation to

this article from considering the present communication.

6.3

The Committee notes that, according to the State Party, the communication is

inadmissible for want of substantiation. The Committee notes, too, that the Provincial Court

of Granada dismissed the author’s appeal concerning the private prosecution pursuant to

article 110 of the Criminal Procedure Act. At the time of the events, this provision stated that

victims of a crime or lesser offence who had not waived their rights could become parties to

the proceedings if they did so before the prosecution’s presentation of its preliminary

conclusions or the filing of an indictment. The author did not comply with this requirement

or contest the decision of the Provincial Court of Granada in which the preliminary

conclusions of the Public Prosecution Service were conveyed. The Committee is therefore of

the view that, because this claim of a violation of article 14 of the Covenant is insufficiently

substantiated, it is inadmissible under article 2 of the Optional Protocol.

6.4

With regard to the claims concerning the rights of the author to a fair trial and the

presumption of innocence, the Committee points out, as it has previously, that, in accordance

with its established jurisprudence, the assessment of facts and evidence and the interpretation

of domestic law are, in principle, matters for national courts, unless they are manifestly

arbitrary or amount to a denial of justice.10

6.5

The author maintains that the Provincial Court did not justify its decision to dismiss

the author’s version of events and give credence to the brothers. The Committee notes,

however, that the Provincial Court described in detail the injuries sustained by each of the

three defendants and indicated that it took 91 days for J. to recover, 44 days for F. and

111 days for the author. In the light of the foregoing and the documentation before it, the

Committee finds that the author has not sufficiently substantiated his argument that there was

8 See, for example, R.M. and Q.M. v. Sweden (CCPR/C/141/D/4062/2021 and

CCPR/C/141/D/4191/2022), para. 7.2, and Mangouras v. Spain (CCPR/C/129/D/R.3305/2019),

para. 6.4.

9 See, for example, Mangouras v. Spain, X v. Iceland (CCPR/C/130/D/2818/2016), para. 6.2, P.B.P. v.

Spain (CCPR/C/143/D/3226/2018), para. 6.2, and X v. Norway (CCPR/C/115/D/2474/2014),

para. 6.2.

10 For example, X v. Latvia (CCPR/C/136/D/3254/2018), para. 7.5.

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an irregularity in the decision-making process or a factor that the State Party’s authorities

failed to take into account in assessing his claims. The Committee declares the author’s

claims in respect of a fair trial with guarantees of due process and the presumption of

innocence inadmissible, as they are not sufficiently substantiated.

6.6

With regard to article 14 (5), the Committee recalls that the right to have one’s

conviction and sentence reviewed by a higher tribunal imposes on the State Party a duty to

review substantively, on the basis of both sufficiency of the evidence and the law, the

conviction and sentence, such that the procedure allows for due consideration of the nature

of the case.11 In the present case, the Supreme Court held that, although there was no reasoned

explanation in the Trial Court’s judgment, the Provincial Court had made its reasoning

sufficiently clear to render judgment. According to the Supreme Court, the version of events

accepted by the Provincial Court was entirely plausible and credible in view of the nature

and severity of J.’s injuries, which would not have been possible if the events had unfolded

as claimed by the author. The third-party statements referred to by the author were, as noted

by the Supreme Court, made by people who did not witness the events. The Committee notes

that the Supreme Court did not simply review points of form or law in respect of the

conviction and is of the view that the author has not sufficiently substantiated his argument

that his right to have his conviction reviewed under article 14 (5) of the Covenant was

violated.

6.7

The Committee declares the communication inadmissible, as it is insufficiently

substantiated, in accordance with article 2 of the Optional Protocol.

6.8

In the light of its findings, the Committee does not deem it necessary to examine other

grounds of inadmissibility.

7.

The Committee therefore decides:

(a)

That the communication is inadmissible under article 2 of the Optional

Protocol;

(b)

That the present decision shall be communicated to the State Party and to the

author.

11 General comment No. 32 (2007), para. 48.