PADIN GESTOSO - Spain (Nº 39519/98)
Decision 8.12.98
[Section IV]

In 1989, following statements made by a "repentant criminal", P., the prosecuting authorities filed a complaint for drugs trafficking against several individuals, including the applicant. The investigating judge declared this complaint admissible and ordered certain investigative measures to be carried out, but contrary to the applicable legislative provisions, he did not inform the applicant of the admissibility of the complaint against him. In 1990, proceedings were initiated against various individuals, including the applicant, who was remanded in custody and held in solitary confinement for almost one month. A lawyer was officially assigned during this period. In 1992, the entire case file was handed over to the defence counsels of the 47 people charged (including the applicant). The applicant was sentenced to 9 years’ imprisonment and a fine. His appeals against this judgment were rejected. The applicant complains of the unfairness of the proceedings in that he was not informed of the complaint against him and that he was made aware of it only ten months after it had been declared admissible, of the fact that his counsel had to wait almost two months before obtaining access to the documents pertaining to the proceedings, and of the fact that he was not given the opportunity to question the co-accused, P., during the proceedings, despite his requests to this effect.

Inadmissible under Article 6(1) and 6(3)(a): Until the order charging the applicant was issued and he was detained on remand, his situation was not directly affected by the investigations conducted by the investigating judge. The applicant can only be considered as a "person charged with a criminal offence" from the time of that order. However, he does not allege that this order was not served on him in time: manifestly ill-founded.

Inadmissible under Article 6(3)(b): The applicant does not deny that he was able to talk with the officially assigned counsel in order to prepare his defence and acknowledges that, after the solitary confinement measure had been lifted, he had access to the documents pertaining to the proceedings. Moreover, in 1992, the applicant’s defence counsels had access to the entire case file, comprising over 80 volumes. As the investigations continued for several years, the applicant had sufficient time to prepare his defence after the order charging him had been served (in 1990). In addition, once the confidentiality of the investigations had been lifted, there is no evidence to suggest that he faced any obstacles in appointing or consulting a lawyer in order to prepare his defence: manifestly ill-founded.

Inadmissible under Article 6(3)(d): In general, these provisions require the accused to be given sufficient opportunity to challenge a statement given in evidence and to question the person who made the statement. In the case in point, the applicant had the opportunity to question P. during the public hearing and to refute the evidence he had given during the proceedings. Accordingly, the fact that the applicant was unable to question P. at an earlier stage in the proceedings did not affect those provisions: manifestly ill-founded.