Teresa Freixes
January 20, 2019
The guarantees that are required to consider, in democratic countries, that we are facing a fair trial are the indicators that we have, as rights that are established in art. 24 of the Spanish Constitution (which is consistent with Article 6 of the European Convention on Human Rights) to ensure that our legitimate interests are duly respected: right to the ordinary judge predetermined by law, right to independent and impartial judge, right to defense, the right to present evidence, the right to obtain a judgment within a reasonable time, the right to an interpreter if we need it, the right not to testify against oneself and not to plead guilty, the right to the presumption of innocence ... And the right to have the judgments executed. Only if one of them is violated, the trial is no longer fair and, then, we have the right to have it reviewed by a judge or higher court that issues a new judgment. The European Court of Human Rights is a last resort, as a subsidiary jurisdiction, if it is considered that in the internal proceedings there is a violation of procedural guarantees.
Is this a utopia? Are these guarantees real and effective? I will comment on some important elements in this regard.
- The independent judge: Certainly, the judges are. All they want to be. Nothing constrains them except the rule of law. The entire Judicial Branch obtains the position through competitive public competition, based on their knowledge and experience. If they allow themselves to be influenced by any other public power, it is because they agree to this, since the whole system is forged to guarantee that independence. Do not confuse, here, as it usually does with the General Council of the Judiciary, which does not impart Justice but is an organ, currently elected by Parliament, in whose charge is the government of the judges, that is, the administrative part of the administration of justice, without any of its members being able to dictate judgments. Perhaps it would be good, to better guarantee that the organization of the Judiciary would respond more adequately to the objective needs of this dispensation of justice, that the judges themselves would appoint the members of the Council, as happens in many democratic countries; but other democratic countries also have elected councils, totally or partially, by parliaments. In both cases, what matters is how they exercise their powers, that is, how they guarantee that judges and magistrates can dictate judgments as they should. The European Court of Human Rights itself is elected by politicians: by the Parliamentary Assembly of the Council of Europe on the proposal (a short list to choose one) of the respective governments. If someone considers that a judge who has to judge him is not independent, he can challenge it. The recusal, once the domestic remedies have been exhausted, can be referred to the European Court of Human Rights.
- The impartial judge: It means that whoever is going to dictate the judgments has no relationship of friendship, kinship, business or any other kind with the parties of the litigation, that is, with those who argue for their rights or legitimate interests. Therefore, when there is a suspicion that there may be mutual interests between the judge and the parties, the judge must either withdraw or, if he does not, he can be challenged. Lawyers have to inform the parties in particular about it, because the objectivity of Justice depends on impartiality. In this case too, the recusal, once the domestic remedies have been exhausted, can be referred to the European Court of Human Rights.
- The right to defense and the presentation of evidence: Essential, in democracy, because we can always be the subject of unfounded accusations. Too many times, we forget that the defense has to present relevant, convincing evidence that discards any reasonable doubt about the guilt of a person being judged. The European Court of Human Rights can control that all this is correct, once the domestic remedies have been exhausted.
- The presumption of innocence: Without parallel judgments, without penalty of newscast. No one is guilty until a final judgment declares it. That is why it is necessary to be aware that being investigated or accused is a simple procedural position, which does not prejudge guilt. You can not be treated as guilty while there is the possibility of appeal or cassation or review of the judgment, or of judicial protection before the Constitutional Court. Justice demands that this presumption be respected, with the European Court of Human Rights being a subsidiary jurisdiction in this regard.
- The judgment issued within a reasonable time: This is the guarantee that more problems entails in its exercise. Why? First because a Justice that arrives late ceases to be Justice. And then, because to know if the term is reasonable or not, that is, if there are no undue delays in the process, it is necessary to examine the complexity of the case, the attitude of the parties (to see if they exercise judicial filibuster, that is, if they put obstacles, they run away, they give wrong addresses, etc. Etc.) and the attitude of the public power. In the latter case, distinguishing, on the one hand, between the public power that is responsible for the organization of the administration of justice, to determine whether the territorial distribution of the courts is timely, or whether or not they have the appropriate means. And, on the other hand, supervising the activity of the judge of the case, his diligence, his dedication, not unnecessarily accumulating the issues. All this should be the subject of better attention by those who have responsibility for the good administration of Justice. When it is considered that a Spanish court does not dictate its resolution without undue delay, an appeal can be filed before the European Court of Human Rights, without waiting for the process to be fully completed, since the question is to determine if the deadlines that the process should follow they are legal and reasonable.
- The judgments must be executed, that is, they must be fulfilled. If what the judge decides in a final judgment does not become effective, Justice disappears. And all the judgments that can not be appealed must be executed, whether they have been dictated by the ordinary courts or the Constitutional Court. We would have saved ourselves a number of problems if certain judgments had been complied with. Therefore, the legal system provides for sanctions if there is resistance to comply with them. Because effective judicial protection of legitimate rights and interests does not exist if the ruling by the judge does not obtain effective compliance. Even we have foreseen, although it took time to adopt the pertinent legislation, that the resource of revision serves to obtain the execution of judgments of international or supranational courts when Spain was condemned by these.
All these guarantees apply to the defendants who are in prison, whatever their origin, condition or economic situation. They are applied to those involved in the process to imprisoned politicians. Let it be clear, as to any person. For something even in associations of European lawyers, the progressive Association Medel among them, consider Spain as one of the most guarantor countries. And for some reason, Spain is one of the countries that, taking into account the statistics that derive from the date of accession to the European Convention on Human Rights and that there is no country in the Council of Europe that has not been convicted of any type of violation of the Convention, has received fewer convictions from the Court of Strasbourg.
In line with what secessionism is spreading about the "oppression" that Spain exerts on its citizenship, in addition to reminding them that "The Economist" places Spain in a very good position among the 20 full democracies, here I pass a few lines on the conclusions that I have written for the book coordinated by Professor Javier Matia, from the University of Valladolid, about the "European National Reports on the European Court of Human Rights (Germany, Spain, France, Italy, Poland)."
There they go:
"Germany, founding member, has been subject, between 1958 and 2016, of some 600 claims before the ECHR and the author of the report explains that most of them did not have a condemnatory result and that the main purpose of these was art. 6 CEDH on procedural guarantees. The ECHR website reports that the total number of convictions has been 321, which gives the lowest annual ratio among the five States examined, taking into account the years that Germany has been a party to the Convention.
Spain, attached to the CEDH and recognizing the jurisdiction of the ECHR in 1979, has been sentenced a total of 103 times by the ECHR (there is no record, on the Council of Europe website, or in the author's study, of the number of complaints processed) since the first judgment was issued in 1988. The number of judgments issued has been 157, according to the website of the Court itself. The art. 6 CEDH has also been the center of attention for the demands.
France, also the founding State of the Council of Europe, has been the subject of 997 judgments by the ECHR, of which 728 have ended in conviction, finding at least one violation of the Convention. Likewise, art. 6 CEDH has focused the Court's attention, in a very high number, not as much as in the case of Italy, but in most cases.
Italy, also a founding member, has received 2,392 sentences from the ECHR, among which 1,819 have been convictions. The vast majority of cases have been violations of art. 6 CEDH, especially with regard to the duration of the proceedings.
Poland, a Member State adhering to the CEDH and recognizing the jurisdiction of the ECHR in 1993, has been subject to a large number of sentences and many of them condemnatory, which expresses a very high ratio, taking into account the relatively recent incorporation of this country into the system of the Convention. Thus, of the 1,145 sentences handed down, Poland has received conviction in 958 cases. It has also been the art. 6 CEDH has occupied the most space in the proceedings, although, as can be seen in the statistical charts of the European Court of Human Rights, other rights of the Convention have also been affected many times, as has been the case with the personal liberty, object of more than 300 judgments (it would be necessary to cross the data well, because in many cases, the violation of the Convention could be verified at the same time, on article 5 in combination with article 6 CEDH). "
And I also include a link to the graphics of the European Court of Human Rights where you can appreciate the position of Spain.
The guarantees that are required to consider, in democratic countries, that we are facing a fair trial are the indicators that we have, as rights that are established in art. 24 of the Spanish Constitution (which is consistent with Article 6 of the European Convention on Human Rights) to ensure that our legitimate interests are duly respected: right to the ordinary judge predetermined by law, right to independent and impartial judge, right to defense, the right to present evidence, the right to obtain a judgment within a reasonable time, the right to an interpreter if we need it, the right not to testify against oneself and not to plead guilty, the right to the presumption of innocence ... And the right to have the judgments executed. Only if one of them is violated, the trial is no longer fair and, then, we have the right to have it reviewed by a judge or higher court that issues a new judgment. The European Court of Human Rights is a last resort, as a subsidiary jurisdiction, if it is considered that in the internal proceedings there is a violation of procedural guarantees.
Is this a utopia? Are these guarantees real and effective? I will comment on some important elements in this regard.
- The independent judge: Certainly, the judges are. All they want to be. Nothing constrains them except the rule of law. The entire Judicial Branch obtains the position through competitive public competition, based on their knowledge and experience. If they allow themselves to be influenced by any other public power, it is because they agree to this, since the whole system is forged to guarantee that independence. Do not confuse, here, as it usually does with the General Council of the Judiciary, which does not impart Justice but is an organ, currently elected by Parliament, in whose charge is the government of the judges, that is, the administrative part of the administration of justice, without any of its members being able to dictate judgments. Perhaps it would be good, to better guarantee that the organization of the Judiciary would respond more adequately to the objective needs of this dispensation of justice, that the judges themselves would appoint the members of the Council, as happens in many democratic countries; but other democratic countries also have elected councils, totally or partially, by parliaments. In both cases, what matters is how they exercise their powers, that is, how they guarantee that judges and magistrates can dictate judgments as they should. The European Court of Human Rights itself is elected by politicians: by the Parliamentary Assembly of the Council of Europe on the proposal (a short list to choose one) of the respective governments. If someone considers that a judge who has to judge him is not independent, he can challenge it. The recusal, once the domestic remedies have been exhausted, can be referred to the European Court of Human Rights.
- The impartial judge: It means that whoever is going to dictate the judgments has no relationship of friendship, kinship, business or any other kind with the parties of the litigation, that is, with those who argue for their rights or legitimate interests. Therefore, when there is a suspicion that there may be mutual interests between the judge and the parties, the judge must either withdraw or, if he does not, he can be challenged. Lawyers have to inform the parties in particular about it, because the objectivity of Justice depends on impartiality. In this case too, the recusal, once the domestic remedies have been exhausted, can be referred to the European Court of Human Rights.
- The right to defense and the presentation of evidence: Essential, in democracy, because we can always be the subject of unfounded accusations. Too many times, we forget that the defense has to present relevant, convincing evidence that discards any reasonable doubt about the guilt of a person being judged. The European Court of Human Rights can control that all this is correct, once the domestic remedies have been exhausted.
- The presumption of innocence: Without parallel judgments, without penalty of newscast. No one is guilty until a final judgment declares it. That is why it is necessary to be aware that being investigated or accused is a simple procedural position, which does not prejudge guilt. You can not be treated as guilty while there is the possibility of appeal or cassation or review of the judgment, or of judicial protection before the Constitutional Court. Justice demands that this presumption be respected, with the European Court of Human Rights being a subsidiary jurisdiction in this regard.
- The judgment issued within a reasonable time: This is the guarantee that more problems entails in its exercise. Why? First because a Justice that arrives late ceases to be Justice. And then, because to know if the term is reasonable or not, that is, if there are no undue delays in the process, it is necessary to examine the complexity of the case, the attitude of the parties (to see if they exercise judicial filibuster, that is, if they put obstacles, they run away, they give wrong addresses, etc. Etc.) and the attitude of the public power. In the latter case, distinguishing, on the one hand, between the public power that is responsible for the organization of the administration of justice, to determine whether the territorial distribution of the courts is timely, or whether or not they have the appropriate means. And, on the other hand, supervising the activity of the judge of the case, his diligence, his dedication, not unnecessarily accumulating the issues. All this should be the subject of better attention by those who have responsibility for the good administration of Justice. When it is considered that a Spanish court does not dictate its resolution without undue delay, an appeal can be filed before the European Court of Human Rights, without waiting for the process to be fully completed, since the question is to determine if the deadlines that the process should follow they are legal and reasonable.
- The judgments must be executed, that is, they must be fulfilled. If what the judge decides in a final judgment does not become effective, Justice disappears. And all the judgments that can not be appealed must be executed, whether they have been dictated by the ordinary courts or the Constitutional Court. We would have saved ourselves a number of problems if certain judgments had been complied with. Therefore, the legal system provides for sanctions if there is resistance to comply with them. Because effective judicial protection of legitimate rights and interests does not exist if the ruling by the judge does not obtain effective compliance. Even we have foreseen, although it took time to adopt the pertinent legislation, that the resource of revision serves to obtain the execution of judgments of international or supranational courts when Spain was condemned by these.
All these guarantees apply to the defendants who are in prison, whatever their origin, condition or economic situation. They are applied to those involved in the process to imprisoned politicians. Let it be clear, as to any person. For something even in associations of European lawyers, the progressive Association Medel among them, consider Spain as one of the most guarantor countries. And for some reason, Spain is one of the countries that, taking into account the statistics that derive from the date of accession to the European Convention on Human Rights and that there is no country in the Council of Europe that has not been convicted of any type of violation of the Convention, has received fewer convictions from the Court of Strasbourg.
In line with what secessionism is spreading about the "oppression" that Spain exerts on its citizenship, in addition to reminding them that "The Economist" places Spain in a very good position among the 20 full democracies, here I pass a few lines on the conclusions that I have written for the book coordinated by Professor Javier Matia, from the University of Valladolid, about the "European National Reports on the European Court of Human Rights (Germany, Spain, France, Italy, Poland)."
There they go:
"Germany, founding member, has been subject, between 1958 and 2016, of some 600 claims before the ECHR and the author of the report explains that most of them did not have a condemnatory result and that the main purpose of these was art. 6 CEDH on procedural guarantees. The ECHR website reports that the total number of convictions has been 321, which gives the lowest annual ratio among the five States examined, taking into account the years that Germany has been a party to the Convention.
Spain, attached to the CEDH and recognizing the jurisdiction of the ECHR in 1979, has been sentenced a total of 103 times by the ECHR (there is no record, on the Council of Europe website, or in the author's study, of the number of complaints processed) since the first judgment was issued in 1988. The number of judgments issued has been 157, according to the website of the Court itself. The art. 6 CEDH has also been the center of attention for the demands.
France, also the founding State of the Council of Europe, has been the subject of 997 judgments by the ECHR, of which 728 have ended in conviction, finding at least one violation of the Convention. Likewise, art. 6 CEDH has focused the Court's attention, in a very high number, not as much as in the case of Italy, but in most cases.
Italy, also a founding member, has received 2,392 sentences from the ECHR, among which 1,819 have been convictions. The vast majority of cases have been violations of art. 6 CEDH, especially with regard to the duration of the proceedings.
Poland, a Member State adhering to the CEDH and recognizing the jurisdiction of the ECHR in 1993, has been subject to a large number of sentences and many of them condemnatory, which expresses a very high ratio, taking into account the relatively recent incorporation of this country into the system of the Convention. Thus, of the 1,145 sentences handed down, Poland has received conviction in 958 cases. It has also been the art. 6 CEDH has occupied the most space in the proceedings, although, as can be seen in the statistical charts of the European Court of Human Rights, other rights of the Convention have also been affected many times, as has been the case with the personal liberty, object of more than 300 judgments (it would be necessary to cross the data well, because in many cases, the violation of the Convention could be verified at the same time, on article 5 in combination with article 6 CEDH). "
And I also include a link to the graphics of the European Court of Human Rights where you can appreciate the position of Spain.
0 comentarios:
Post a Comment