CCPR/C/99/D/1869/2009

Communication No. 1869/2009, Sanjuán v. Spain

(Decision adopted on 26 July 2010, ninety-ninth session)*

Submitted by:

Mario Alfonso Sanjuán (represented by

counsel, Joaquín Ruíz-Giménez Aguilar and

Máximo-Rafael Blázquez Aldana)

Alleged victims:

The author

State party:

Spain

Date of communication:

13 January 2009 (initial submission)

Subject matter:

Evaluation of evidence and scope of the

review of criminal cases on appeal by

Spanish courts

Procedural issue:

Failure to substantiate claims

Substantive issue:

Right to have the conviction and sentence

reviewed by a higher tribunal according to

law

Article of the Covenant:

14, paragraph 5

Article of the Optional Protocol:

2

The Human Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 26 July 2010,

Adopts the following:

Decision on admissibility

1.1 The author of the communication, dated 13 January 2009, is Mario Alfonso Sanjuán,

a Spanish national, who claims to be a victim of a violation by Spain of article 14,

paragraph 5, of the Covenant. The Optional Protocol entered into force for Spain on 25

April 1985. The author is represented by counsel, Joaquín Ruíz-Giménez Aguilar and

Máximo-Rafael Blázquez Aldana.

1.2 On 7 May 2009, the Rapporteur on New Communications and Interim Measures,

acting on behalf of the Committee, decided that the admissibility of the communication

should be considered separately from the merits.

Factual background

2.1 On 30 April 2004, the Provincial High Court of Zaragoza sentenced the author to

four years’ imprisonment, a fine and disqualification for the offence of fraud related to

the sale of works of art.

2.2 The author filed an appeal in cassation against the decision with the Second Division

of the Supreme Court on the following grounds: refusal to admit documentary evidence,

violation of the right to be presumed innocent, errors of fact in the evaluation of the

evidence and improper application of articles 248, 250 and 74 of the Spanish Criminal

* The following members of the Committee participated in the consideration of the present

communication: Mr. Prafullachandra Natwarlal Bhagwati, Mr. Lazhari Bouzid, Ms. Christine

Chanet, Mr. Mahjoub El Haiba, Mr. Ahmad Amin Fathalla, Mr. Yuji Iwasawa, Ms. Helen Keller,

Ms. Zonke Zanele Majodina, Ms. Iulia Antoanella Motoc, Mr. Michael O’Flaherty, Mr. José Luis

Pérez Sánchez-Cerro, Mr. Rafael Rivas Posada, Mr. Fabián Omar Salvioli and Mr. Krister Thelin.

Code. In a judgement issued on 20 February 2006, the Supreme Court rejected the

appeal and upheld the sentence in its entirety.1

2.3 On 3 May 2006, the author submitted an application for amparo to the

Constitutional Court, citing the right to an effective legal remedy and the right to have

the conviction and sentence reviewed by a higher tribunal as established in article 14,

paragraph 5, of the Covenant. The Constitutional Court rejected the application on 21

July 2008.

The complaint

3. The author alleges a violation of his right to have the conviction and sentence

submitted to and reviewed by a higher tribunal, in accordance with article 14, paragraph

5, of the Covenant. The author argues that the Supreme Court did not conduct a full and

effective review of the facts that had been declared proven by the Provincial High

Court.

State party’s observations on admissibility

4.1 In its observations issued on 3 May 2009, the State party indicates that the scope of

the Spanish remedy of cassation has been expanded, and is not therefore limited to a

review of the law applied. The State party refers to the Committee’s case law,2 in which

the remedy of cassation is considered sufficient for the purposes of article 14, paragraph

5, of the Covenant.

4.2 The State party further maintains that the sentence handed down by the Supreme

Court addresses all the grounds of appeal raised by the author, in particular those

relating to the dismissal of evidence in the first instance proceedings. It points out that

the Supreme Court provided a specific and substantiated explanation of the reasons why

the evidence submitted was ruled to be unnecessary and to serve no exculpatory

purpose. It adds that the Supreme Court conducted a thorough review of the sufficiency

of the evidence for prosecution and gave a detailed and reasoned response to the

author’s objections. The State party asks for the communication to be declared

inadmissible on the grounds that it is not sufficiently substantiated and constitutes an

abuse of the purpose of the Covenant.

Author’s comments on the State party’s observations

5. The author submitted his comments on the State party’s observations on

admissibility on 26 June 2009. He provides a summary of Spanish case law concerning

the scope of the review of criminal cases on appeal and reiterates that, in his case, there

was no proper second hearing allowing for a review of the facts and of his conviction.

He adds that, had a second hearing actually taken place, either the Supreme Court or the

Constitutional Court would have been able to examine all the evidence submitted by the

author’s counsel and unduly dismissed by the trial court, and to review and modify the

facts erroneously declared proven.

Issues and proceedings before the Committee

6.1 Before considering any claim contained in a communication, the Human Rights

Committee must, in accordance with rule 93 of its rules of procedure, decide whether

the communication is admissible under the Optional Protocol to the Covenant.

1 With regard to the violation of the presumption of innocence (second ground of appeal), the

Supreme Court indicated that: “The review in cassation performed by this Court covers: (a)

whether there is sufficient evidence obtained and submitted to the proceedings without violating

constitutional or ordinary law; (b) whether or not, in its explanation, which must be presented in a

reasoned and substantiated manner, as to how it arrived at its decision, the lower court diverged

from the guidelines derived from general experience, rules of logic or principles or rules of any

other nature.”

2 Including communications No. 1389/2005, Bertelli Gálvez v. Spain, decision of 25 July 2005; No.

1399/2005, Cuartero Casado v. Spain, decision of 25 July 2005; and No. 1323/2004, Lozano

Araez et al. v. Spain, decision of 28 October 2005.

6.2 The Committee notes that the State party has not submitted any information

suggesting the non-exhaustion of domestic remedies, and therefore considers there to be

no impediment to examining the communication under article 5, paragraph 2 (b), of the

Optional Protocol.

6.3 The Committee takes note of the author’s arguments in support of his assertion that

the remedy of cassation does not constitute a full review as required under article 14,

paragraph 5, of the Covenant. It also notes the State party’s claims that the Supreme

Court conducted a full review of the Provincial High Court’s ruling. The Committee

observes that the Supreme Court’s decision of 20 February 2006 indicates that the Court

considered each of the author’s grounds of appeal, and reviewed the Provincial High

Court’s assessment of the sufficiency of the evidence. Consequently, the Committee

considers that the author’s complaint has not been sufficiently substantiated for

purposes of admissibility, and must therefore be declared inadmissible in accordance

with article 2 of the Optional Protocol.

7. The Human Rights Committee therefore decides:

(a)

That the communication is inadmissible under article 2 of the Optional

Protocol;

(b)

That this decision shall be communicated to the State party and to the

authors.

[Adopted in English, French and Spanish, the Spanish text being the original version.

Subsequently to be issued also in Arabic, Chinese and Russian as part of the present

report.]