Luis Pascual Estevill v. Spain, Communication
U.N. Doc. CCPR/C/77/D/1004/2001 (2001).
Views of the Human Rights Committee
under article 5, paragraph 4,
of the Optional Protocol to
the International Covenant
on Civil and Political Rights
- Seventy-seventh session -
Communication No. 1004/2001
Submitted by: Mr. Luis Pascual Estevill (represented by Mr. Javier Pascual
Alleged victim: The author
State party: Spain
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 25 March 2003,
Adopts the following:
Decision on admissibility
1. The author of the communication is Mr. Luis Pascual Estevill, a Spanish national.
In his communication of 12 March 2001, he claims to be the victim of a violation
by Spain of article 14, paragraph 5, of the International Covenant on Civil and
Political Rights. The author is represented by counsel.
The facts as submitted by the author
2.1 On 4 July 1996, the Supreme Court sentenced Mr. Pascual Estevill, a member
of the General Council of the Judiciary, to six years' suspension from the exercise
of judicial functions for breach of public trust in combination with two offences
of unlawful detention.
2.2 The author submitted an application for amparo to the Constitutional
Court, claiming violation of his right to effective legal protection and infringement
of his right to due process, insofar as the judgement handed down by the Supreme
Court, acting as court of first instance, denied the author access to other remedies.
His application was turned down on 17 March 1997.
2.3 The author took his case to the European Commission of Human Rights, claiming
(a) a violation of article 13 of the European Convention on Human Rights and (b)
a violation of article 2, paragraph 1, of Protocol No. 7 to the Convention and
of articles 14 and 15 of the International Covenant on Civil and Political Rights.
In a decision dated 6 July 1998, the Commission declared the application "manifestly
ill-founded" and consequently inadmissible. (1)
3. The author claims a violation of article 14, paragraph 5, of the Covenant on
the grounds that the judgements of the Supreme Court are without remedy, i.e.
that in criminal proceedings against protected persons the principle of sole instance
applies, which means that, as in the author's case, the convicted person is denied
access to the appeals machinery.
The State party's observations on admissibility
4.1 In its observations dated 15 October 2001, the State party notes that criminal
proceedings have been taken against Luis Pascual Estevill on a number of charges
since late 1994 in connection with his conduct as a judge.
4.2 The State party challenges the admissibility of the communication on the basis
of the reservation to article 5, paragraph 2 (a), that it entered on depositing
its instrument of ratification of the Optional Protocol to the Covenant, and contends
that the reservation prevents the consideration of a matter which has been previously
submitted to another international investigation or settlement. The State party
claims that the reservation applies in the present case because the author submitted
the same matter to the European Commission of Human Rights, which, having considered
the author's complaint that he had no effective remedy against his sentence, concluded,
in its ruling on inadmissibility, that since the author had submitted an application
for amparo to the Constitutional Court, he had an effective remedy available
before a domestic court.
4.3 The State party further considers that the communication should be declared
inadmissible on the grounds that it constitutes an abuse of the right of submission,
under article 3 of the Optional Protocol, since the author, who, as a former judge,
undoubtedly has above-average legal qualifications, chose his own moment and submitted
the communication 48 months after the final domestic judgement and 32 months after
the European Commission's decision.
4.4 Lastly, the State party argues that it was the author himself who, given his
position as member of the General Council of the Judiciary, insisted on being
tried by the Supreme Court, which he considered the competent judicial body. Consequently,
on 7 November 1994, he submitted a written application to the High Court of Catalonia
for the criminal proceedings against him to be transferred to the Second Division
of the Supreme Court. When that application was rejected, he submitted an application
for reconsideration, which was also rejected by the High Court. Finally, on 14
November 1994, he submitted an application to the Supreme Court requesting it
to assume jurisdiction to investigate and try him; the Supreme Court's response
was to declare itself competent "in accordance with the request". To summarize,
the State party argues that the author cannot call into question his own actions
and complain to the Committee that he has been tried in sole instance by the Supreme
Court, when in domestic procedures all his efforts were directed towards ensuring
that he would in fact be tried by that Court and, having attained that objective,
he submitted not the slightest complaint in that regard during the proceedings.
The author's comments on the State party's observations on admissibility
5.1 In his comments of 11 January 2002 in response to the State party's observations
on admissibility, the author argued that the information provided by the State
party concerning the criminal proceedings against him has no bearing on the grounds
on which the claim of inadmissibility is based.
5.2 With regard to the State party's reservation, the author states that a matter
may be brought before the Committee even if it has been submitted to the European
Court of Human Rights provided that, as in this case, the Court has not considered
the merits of the case. He claims that the Committee's case law is "constant"
(sic) in holding that a matter has not been considered if an application under
another international procedure has been declared inadmissible and has not been
considered on the merits, and he refers to the Committee's Views in the case of
Casanovas v. France. (2) He further claims that
the decision on inadmissibility in his case was based on article 27, paragraph
2, of the European Convention, which reads as follows: "The Commission shall consider
inadmissible any petition submitted under article 25 which it considers incompatible
with the provisions of the present Convention, manifestly ill-founded or an abuse
of the right of petition", which leaves no room for doubt that his case was not
considered on the merits. Lastly, the author claims that his application for amparo
to the Constitutional Court was also declared inadmissible, that therefore it
was not considered on the merits and there was no review of the judgement handed
down in first instance.
5.3 With regard to the inadmissibility of the communication under article 3 of
the Optional Protocol, the author states that the article should be given a more
restrictive interpretation than that applied by the State party. He also claims
that requiring a given individual, as in this case, to subject himself to time
frames in the light of personal and professional circumstances, is a violation
of the principle of legality and equality, since the Optional Protocol sets no
deadlines whatsoever for submission of a complaint to the Committee.
5.4 Lastly, the author informs the Committee that in Spain it is not the accused
who chooses the courts but the courts that are stipulated by the law. (3)
The Committee's deliberations on admissibility
6.1 Before considering any claims contained in a communication, the Human Rights
Committee must, in accordance with rule 87 of its rules of procedure, decide whether
or not the communication is admissible under the Optional Protocol to the Covenant.
6.2 The only complaint by the author is related to article 14, paragraph 5, of
the Covenant, which stipulates that "Everyone convicted of a crime shall have
the right to his conviction and sentenced being reviewed by higher tribunal."
The Committee notes that the State party's legal system would have granted the
right of appeal if the author had been tried by the High Court of Catalonia. However,
it was the author himself who repeatedly insisted that he be tried directly by
the Supreme Court. Bearing in mind that the author is a former judge with a great
deal of experience, the Committee considers that, by insisting on being tried
only by the Supreme Court, the author has renounced his right of appeal. The Committee
considers that, in the circumstances, the allegation by the author constitutes
an abuse of the right to submit communications, in accordance with article 3 of
the Optional Protocol.
6.3 Consequently, the Committee does not deem it necessary to consider whether
the submission of one and the same matter to the European Commission of Human
Rights prevents consideration of the case in question on the basis of the State
party's reservation concerning article 5, paragraph 2 (a), of the Optional Protocol.
7. Accordingly, the Committee decides,
(a) That the communication is inadmissible under article 3 of the Optional Protocol;
(b) That this decision shall be communicated to the State party and the author.
[Adopted in Spanish, French and English, the Spanish text being the original version.
Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee's
annual report to the General Assembly.]
* The following members of the Committee participated in the examination of the
present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra
Natwarlal Bhagwati, Mr. Alfredo Castillero Hoyos, Ms. Christine Chanet, Mr. Franco
Depasquale, Mr. Maurice Glèlè Ahanhanzo, Mr. Walter Kälin, Mr. Ahmed Tawfik Khalil,
Mr. Rajsoomer Lallah, Mr. Rafael Rivas Posada, Mr. Nigel Rodley, Mr. Martin Scheinin,
Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen, Ms. Ruth Wedgwood, Mr. Roman Wieruszewski
and Mr. Maxwell Yalden.
1. Decision of the European Commission of Human Rights dated
6 July 1998 (No. 38224/97), in which it was held that Protocol No. 7 to the
European Convention for the Protection of Human Rights could not be invoked
by the author, since Spain had not ratified the Protocol.
2. Communication No. 441/1990, Casanovas v. France, findings adopted
on 19 July 1994
3. According to article 57, paragraph 1, of the Judiciary (Organization) Act
of 6 July 1985, "The Criminal Division of the Supreme Court shall be competent
to: (2) investigate and try cases against the President of the Government, the
Presidents of the Congress and the Senate, the Presidents of the Supreme Court
and of the General Council of the Judiciary, the President of the Constitutional
Court, members of the government, Deputies and Senators, members of the General
Council of the Judiciary.