Submitted by: Mr. Francisco Asensio López (represented by Mr.
José Luis Mazón Costa)
Alleged victim: Author
State party: Spain
Date of communication: 12 July 1999 (initial submission)
The Human Rights Committee, established under article 28 of
the International Covenant on Civil and Political Rights,
Meeting on 23 July 2001
Adopts the following:
1. The author of the communication, dated 12 July 1999, is Mr. Francisco
Asensio López, a Spanish citizen, who claims that the judgement handed
down in an action brought by his wife for a review of their separation
arrangements constituted defamation. He also alleges that the courts
failed to deal with the criminal suit he filed on account of insulting
and slanderous statements contained in that judgement. He claims to
be the victim of a violation by Spain of article 14, paragraph 1,
of the International Covenant on Civil and Political Rights. The author
is represented by counsel.
The facts as submitted
by the author
2.1 An action for a
review of separation arrangements was brought against Mr. Francisco
Asensio López by his wife, from whom he was legally separated. The
judgement of the court of first instance of 31 May 1996, which terminated
the proceedings, contained references to the author's state of mind.
It stated that "it was not possible to obtain the prescribed expert
opinion assessing his psychiatric state, which would certainly have
found that he suffers from some kind of mental disturbance. This
may be gathered just from talking to him or reading one of the complaints
he has lodged: Mr. Asensio is clearly using his daughter to waste
the time of the three courts in this district, misusing his rights
and directing unjustifiable public criticism, through statements
in the newspaper La Opinión - thus bringing them to the attention
of the public - against the presiding judges, the lawyers who have
rendered him proper assistance since the separation - they have
all withdrawn their services, a step accepted as being more than
justified - and the officers of the Molina de Segura local police
2.2 On 1 July 1996,
the author lodged a complaint with the Guardia Court against the
humiliating language used by the court in the judgement of 31 May
1996, alleging that it could be characterized as insulting or slanderous.
The complaint was drafted by the author himself as a layman. Since
the body competent to hear complaints against judges in the jurisdiction
concerned is the High Court of Justice in Murcia, the complaint
was referred to that court and was dismissed on 10 September 1996.
The Court informed the author that he had three days to submit an
application for reconsideration, and this was done by the author
on 3 October 1996.
2.3 On 9 October 1996,
the High Court of Justice in Murcia informed the author that it
would not consider the application since the assistance of counsel
was required for its consideration.
2.4 The author, assisted
by counsel, submitted the application for reconsideration on 30
October 1996 to the High Court of Justice in Murcia, which took
no decision until 25 February 2000.
3.1 The author argues
in the communication he submitted to the Committee that the statements
contained in the judgement of the court of first instance of 31
May 1996 constitute a clear violation of his right to an impartial
and objective hearing. He furthermore considers that referring in
the judgement to the defendant as a person "suffering from some
kind of mental disturbance" without any psychiatric evidence to
support such a claim constitutes an act that is not only frivolous
but also incompatible with article 14, paragraph 1, of the Covenant.
3.2 With regard to the
dismissal order by the High Court of Justice of 10 September 1996,
the author argues that such a decision violates the right to fair
and impartial consideration of a complaint against a judge for damaging
the author's reputation in the judgement rendered. The author therefore
contends that there was a denial of justice since the court declined
to examine the merits of the case, thus violating article 14, paragraph
3.3 The author argues
that he has exhausted all domestic remedies with his application
to the High Court of Justice, the highest judicial body in the Autonomous
Community of Murcia. He attributes his failure to bring an amparo
application before the Constitutional Court to the unlikelihood
of its success.
3.4 The same matter
is not being examined under another procedure of international investigation
observations of the State party and comments of the author on admissibility
4.1 In its observations
of 7 February 2000, the State party challenges the admissibility
of the communication, arguing that Asensio López has not exhausted
all domestic remedies since he had the possibility of appointing
counsel and submitting the application for reconsideration in the
proper manner. It should be noted that the author had by that time
already submitted such an application, on 30 October 1996.
4.2 In his comments
of 17 May 2000, the author replies that although the application
for reconsideration was filed on 30 October 1996, the High Court
of Justice took its decision only on 25 February 2000, when the
application was dismissed. The author therefore considers that domestic
remedies have been exhausted.
Issues and proceedings
before the Committee
5.1 Before considering
any claim 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.
5.2 The Committee has
ascertained, as required under article 5, paragraph 2 (a), of the
Optional Protocol, that the same matter is not being examined under
another procedure of international investigation or settlement.
5.3 With regard to the
requirement of exhaustion of domestic remedies, the Committee notes
that the High Court of Justice in Murcia had not ruled on the application
for reconsideration when the author submitted his communication
to the Human Rights Committee on 12 July 1999. However, taking into
account the subsequent decision by the High Court of Justice to
dismiss the application for reconsideration and noting that the
State party has not objected thereto, the Committee considers that
domestic remedies have been exhausted.
5.4 Bearing in mind
that the High Court of Justice in Murcia reviewed its decision on
the claims contained in the communication and the author's failure
to demonstrate that the said Court violated his rights under article
12, paragraph 1, of the Covenant, or that he has been denied justice,
the Committee considers that the said claims have not been duly
substantiated for the purposes of admissibility.
6. 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 author's counsel.
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando,
Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr.
Maurice Glèlè Ahanhanzo, Mr. Louis Henkin, Mr. Eckart Klein, Mr.
David Kretzmer, Mr. Rajsoomer Lallah, Mr. Rafael Rivas Posada, Sir
Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan Shearer, Mr. Hipólito
Solari Yrigoyen, Mr. Ahmed Tawfik Khalil, Mr. Patrick Vella and
Mr. Maxwell Yalden.
[Adopted in English,
French and Spanish, the Spanish text being the original version,.
Subsequently to be translated also in Arabic, Chinese and Russian,
as part of the Committee's annual report to the General Assembly.]