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THE FACTS

The applicant [Ramón Franquesa Freixas] is a Spanish national who was born in 1943 and lives in Tarragona. He is a lawyer.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A.  The circumstances of the case

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.”

B.  Relevant domestic law

Constitutional Court Act

Section 44(2)

“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

Article 160

“Final judgments shall be delivered and served on the parties and their lawyers...”

COMPLAINTS

Relying on Article 6 § 3 (b) and (c) of the Convention, the applicant complained that at first instance he had not been defended by an officially assigned lawyer specialised in criminal law. He also complained of the Constitutional Court’s decision dismissing his amparo appeal on the ground that it was out of time. He submitted that the fact that the Constitutional Court had taken the date of service of the Barcelona Audiencia Provincial’s judgment on his officially assigned solicitor as the date for calculating the twenty-day time-limit for lodging an amparo appeal, and not that of the date of service of the judgment on him personally, was contrary to the Convention.

THE LAw

1.  The applicant complained that in the proceedings at first instance he had not been defended by an officially assigned lawyer specialised in criminal law. He relied on Article 6 § 3 (b) and (c) of the Convention, the relevant part of which provides:

“3.  Everyone charged with a criminal offence has the following minimum rights:

...

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

...”

The Court reiterates first that, according to the established case-law of the Convention institutions, Article 6 § 3 (c) does not guarantee the right to choose an official defence counsel who is appointed by the court, nor does it guarantee a right to be consulted with regard to the choice of an official defence counsel (see application no. 6946/75, Commission decision of 6 July 1976, Decisions and Reports (DR) 6, pp. 114-19, and application no. 12152/86, Commission decision of 9 May 1989, DR 61, p. 171).

The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, pp. 12-13, § 24). Accordingly, it is for the authorities empowered to grant free legal aid and to appoint a defence counsel to ensure that the latter can defend the accused effectively (see, mutatis mutandis, the Artico v. Italy judgment of 13 May 1980, Series A no. 37, pp. 15-16, § 33).

In the instant case the applicant was awarded legal aid and assigned as defence counsel a lawyer who, according to him, was not specialised in criminal law. However, that fact does not in itself mean that the applicant’s right guaranteed by Article 6 § 3 (c) of the Convention was not properly respected in the present case. The Court notes, in particular, that the applicant confined himself to casting doubt generally on the officially assigned lawyer’s ability to defend him on the ground that, in his submission, she was specialised in labour law, not criminal law. He did not submit any plausible evidence to support his assertion that the officially assigned lawyer was incompetent. Moreover, and as the court of first instance found, the applicant, himself a lawyer, chose not to defend himself or to instruct a lawyer of his choice. The Court does not therefore perceive any appearance of a violation of the provisions of the Convention. It follows that this part of the application must be rejected as manifestly ill-founded in accordance with Article 35 § 3 of the Convention.

2.  The applicant also complained of the Constitutional Court’s judgment dismissing his amparo appeal for being out of time and submitted that the fact that the Constitutional Court had taken the date of service of the Barcelona Audiencia Provincial’s judgment on his officially assigned lawyer as the date for calculating the twenty-day time-limit for lodging the appeal, and not the date of service of that judgment on him personally, was contrary to the Convention.

The Court considers that this complaint must be examined from the standpoint of the right of access to a tribunal, guaranteed by Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Court reiterates, however, that its task is not to substitute itself for the domestic courts. It is in the first place for the national authorities, and notably the courts, to interpret domestic law (see, among many other authorities, the Tejedor García v. Spain judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2796, § 31, the Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, Reports 1997-VIII, p. 2955, § 31; the Edificaciones March Gallego S.A. v. Spain judgment of 19 February 1998, Reports 1998-I, p. 290, § 33; and the Pérez de Rada Cavanilles judgment of 28 October 1998, Reports 1998-VIII, p. 3255, § 43). The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention. This applies in particular to the interpretation by the courts of rules of a procedural nature such as time-limits governing the filing of documents or the lodging of appeals (see, mutatis mutandis, the Tejedor García judgment cited above, § 31). The Court further considers that the rules governing the formal steps to be taken and the time-limits to be complied with in lodging an appeal are aimed at ensuring the proper administration of justice and compliance, in particular, with the principle of legal certainty. Litigants should expect those rules to be applied.

In the present case the Constitutional Court applied its case-law concerning the calculation of the twenty-day time-limit laid down by section 44(2) of the Constitutional Court Act for the lodging of an amparo appeal and, in particular, the determination of the starting-point of the period in which the said appeal could be lodged. It held that the time-period had started running from the date on which the judgment of the Barcelona Audiencia Provincial had been served on the applicant’s lawyer, that is, 2 September 1998, and not from the date on which it had been personally served on the applicant. The Court considers that that construction of the domestic law does not, in itself, appear to be contrary to the Convention.

Admittedly, the applicant submitted that his officially assigned lawyer had not sent him the Audiencia Provincial’s judgment and that he had not been able to lodge his amparo appeal until it had been served on him personally on 29 September 1998. In that connection the Court does not exclude the possibility that an issue may arise from the standpoint of access to a court if an appeal is declared inadmissible as a result of the failure by an officially assigned lawyer to comply with a formal requirement. However, in the instant case it observes that, in his amparo appeal, the applicant’s lawyer stated that the Barcelona Audiencia Provincial’s judgment of 9 July 1998 had been served personally on the applicant on 9 September 1998. Even supposing that that date were considered to be the starting-point for the purposes of calculating the twenty-day time-limit laid down for lodging an amparo appeal, the Court notes that the applicant did not in any event lodge his amparo appeal until 23 October 1998, by which time the twenty-day time-limit laid down by section 44(2) of the Constitutional Court Act had been substantially exceeded.

Having regard to the foregoing, this part of the application must be rejected as being manifestly ill-founded according to Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress 
 Registrar President

ramon franquesa freixas v. spain DECISION


ramon franquesa freixas v. spain DECISION