Michael and Brian Hill v. Spain, Communication No.
526/1993, U.N. Doc. CCPR/C/59/D/526/1993 (2 April 1997).
Michael and Brian Hill v. Spain, Communication No.
526/1993, U.N. Doc. CCPR/C/59/D/526/1993 (2 April 1997).
Distr. RESTRICTED [*] */
CCPR/C/59/D/526/1993
2 April 1997
Original: ENGLISH
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HUMAN RIGHTS COMMITTEE
Fifty-ninth session
24 March - 11 April 1997
VIEWS
Communication No. 526/1993
Submitted by:
Michael and Brian Hill
Victims: The
authors
State party:
Spain
Date of communication: 1 October 1992 (initial submission)
Date of adoption of Views: 2 April 1997
On 2 April 1997, the Human Rights Committee
adopted its Views under article 5, paragraph 4, of the Optional
Protocol in respect of communication No. 526/1993. The text of the
Views is appended to the present document.
[ANNEX]
VWS526.59e cb
GE.97-
ANNEX*
Views of the Human Rights Committee under
article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights
- Fifty-ninth
session -
concerning
Communication No. 526/1993**
Submitted by:
Michael and Brian Hill
Victims: The
authors
State party:
Spain
Date of communication: 1 October 1992 (initial submission)
Date of decision on
admissibility: 22 March 1995
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 2 April
1997,
Having concluded its
consideration of communication No. 526/1993 submitted to the Human
Rights Committee by Messrs. Michael and Brian Hill under the Optional
Protocol to the International Covenant on Civil and Political
Rights,
Having taken into account all written information made available to it by the
authors of the communication and the State party,
Adopts the
following:
Views under article 5, paragraph 4, of the
Optional Protocol
1. The authors of the communication are Michael
Hill, born in 1952, and Brian Hill, born in 1963, both British
citizens, residing in Herefordshire, United Kingdom of Great Britain
and Northern Ireland. They claim to be victims of violations by Spain
of articles 9 and 10 and article 14, paragraphs 1, 2 and 3(b) and
(e), of the International Covenant on Civil and Political Rights.
Michael Hill also invokes article 14, paragraph 3(d), of the
Covenant. The Covenant entered into force for Spain on 27 August
1977, and the Optional Protocol on 25 April 1985.
The facts as submitted by the
authors
2.1 The authors owned a construction firm in
Cheltenham, United Kingdom, which declared bankruptcy during the
detention of the authors in Spain. In July 1985, they went on holiday
to Spain. The GandÌa police arrested them on 16 July 1985, on
suspicion of having firebombed a bar in GandÌa, an accusation
which the authors have denied since the time of their arrest,
claiming that they were in the bar until 2.30 a.m. but did not return
at 4 a.m. to set fire to the premises.
2.2 At the police station, the authors requested
the police to allow them to contact the British Consulate, so as to
obtain the aid of a consular representative who could assist as an
independent interpreter. The request was denied, and a young,
unqualified interpreter, a student interpreter, was called to assist
in the interrogation, which took place without the presence of
defence counsel. The authors state that they could not express
themselves properly, as they did not speak Spanish, and the
interpreter's English was very poor. As a result, serious
misunderstandings allegedly arose. They deny having been informed of
their rights at the time of their arrest or during the interrogation
and allege that they were not properly informed of the reasons for
their detention until 7 or 8 hours, respectively, after the
arrest.
2.3 The authors further state that they were
confronted with an alleged eyewitness to the crime during a so-called
identification parade made up of the authors, in handcuffs, and two
uniformed policemen. The witness, who initially could not describe
the authors of the crime, eventually pointed them out.
2.4 They also complain that their new camper,
valued at 2.5 million pesetas, as well as all their money and other
personal effects, were confiscated and not returned by the
police.
2.5 On 19 July 1985, the authors were formally
charged with arson and causing damage to private property. The
indictment stated that the authors, on 16 July 1985, had left the bar
at 3 a.m., driven away in their camper, returned at 4 a.m. and thrown
a bottle containing petrol and petrol-soaked paper through a window
of the bar.
2.6 On 20 July 1985, they appeared before the
examining magistrate (GandÌa No. 1) in order to submit a
statement denying their involvement in the crime.
2.7 After having been held in police custody for
10 days, for five of which they were allegedly left without food and
with only warm water to drink, they were transferred to a prison in
Valencia.
2.8 On 29 July 1985, a lawyer was assigned to them
for the preliminary hearing; this lawyer allegedly told the authors
that, if they could pay a certain amount of money, they would be
released. It is not clear from the authors' submissions how the
preliminary hearing proceeded. It would appear, however, that they
claim that confusion and misunderstandings were common, due to the
incompetence of the interpreter. In this context, it is submitted
that the police records stated that their camper operated on
ApetrÛleo"
(diesel). When asked by the examining magistrate (who was also under
the impression that the camper ran on diesel) what substance their
spare container contained, they replied to him that it was filled
with petrol, which was translated as ApetrÛleo" by the
interpreter. The judge then said that they were lying. The authors
attempted to explain that their camper ran on petrol, and that in the
back of the vehicle they had a spare four-litre container filled with
petrol. According to them, the judge must have seen or smelled from a
sample that the container was indeed filled with Agasolina" (petrol), and since he
believed that the camper ran on diesel, he must have thought that
there was a container with petrol for manufacturing the Molotov
cocktail.
2.9 Upon conclusion of the preliminary hearing,
the authors were informed that the trial would take place in November
1985. However, the trial was delayed, reportedly on the ground that
some documents could not be found. On 26 November 1985, the authors
were summoned to court to sign some papers, whereupon the judge told
them that he would contact their lawyer in order to set a new date
for the trial. On 10 December 1985, the authors informed the legal
aid lawyer that his services were no longer required, as they were
not satisfied with his conduct of the case.
2.10 The authors secured private legal
representation on 4 December 1985. On 17 January 1986, the lawyer
submitted an application to the court for the authors' release on
bail, mainly on the ground that their construction firm was in a
state of bankruptcy owing to their detention. Upon the advice of the
public prosecutor, bail was denied on 21 February 1986. The authors
complained that, although they had paid large sums of money to the
lawyer, no progress was being made in their case, as he was ignoring
their instructions. On 31 July 1986, they dismissed the
lawyer. As the authors did not hear from him again, they assumed that
the lawyer had notified the relevant authorities of their decision
and that a legal aid lawyer would be assigned to them. However, it
was not until 22 October 1986 that the lawyer notified the court of
his withdrawal from the case.
2.11 On 1 November 1986, a new legal aid lawyer
was assigned to the authors. The trial was scheduled to start on 3
November 1986. The first question from the public prosecutor was what
fuel their camper used. The authors again replied that it ran on
petrol, which this time was translated as Agasolina". After having given
the same reply three times, the authors requested an adjournment of
the trial, so that the prosecution could verify their claim. They
also asked for an adjournment on the ground that they had had only a
20-minute interview with their defence lawyer since he had been
assigned to their case. The trial was postponed for two weeks.
3.1 The authors complain that the legal aid lawyer
did not make much effort to prepare their defence. They state that,
when he visited them on 1 November 1986, he was accompanied
by an interpreter who spoke barely any English; the lawyer did not
even have the case file with him. After the trial was adjourned, the
lawyer only visited them on 14 November 1986, for 40 minutes,
again without the case file, and this time without the interpreter.
The authors further claim that, although the lawyer was assigned and
paid by the State party, he demanded 500,000 pesetas from their
father for alleged expenses prior to the hearing.
3.2 With the assistance of two bilingual inmates,
the authors prepared their own defence. They decided that Michael
would defend himself in court and that Brian would leave it to the
lawyer, to whom they provided all the relevant material.
3.3 On 17 November 1986, the authors were tried in
the Provincial High Court of Valencia. Through the interpreter,
Michael Hill informed the judge of his intention to defend himself in
person, pursuant to article 6, paragraph 3(c), of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms. The judge asked him whether he spoke Spanish and whether he
was a lawyer; when he replied in the negative, the judge told him to
sit down and be quiet.
3.4 The prosecution's case was based solely on an
alleged eyewitness, who had testified during the preliminary
investigations that he had met with the authors prior to the incident
and that their camper was parked in front of his house. At about 4
a.m., he had seen two youths resembling the authors throw a flaming
bottle into the bar and leave in a grey camper. He had immediately
called the police. The authors submit that the statements made by the
witness during the preliminary investigations are contradictory in a
number of respects and that, during the trial, the witness could not
identify them. He was asked three times by the judge to take a look
at the accused, and each time the witness said that Ahe could not
remember the youths", that Ahe was an old man" and that Ait had
happened 16 months ago". Furthermore, under cross-examination, he
failed to give a clear description of the camper, and stated that
Athe vehicle used by the perpetrators could have been British,
Austrian or even Japanese".
3.5 The authors explain that, as the lawyer only
asked the witness four irrelevant questions about the camper and did
not take up the list of questions which they had prepared specially
about the irregularities in the so-called identification parade,
Michael Hill again requested the right to defend himself in person.
He informed the judge that he wanted to cross-examine the prosecution
witness and call a witness for the defence who was present in court.
The judge allegedly replied that he would have the opportunity to do
all those things on appeal, demonstrating clearly that at that point
he had already decided to convict them in violation of their right to
be presumed innocent. After a trial lasting barely 40 minutes, the
authors were convicted as charged and sentenced to six years and one
day of imprisonment and to the payment of 1,935,000 pesetas in
damages to the owner of the bar.
3.6 The authors then wrote numerous letters to
various offices, such as the British Embassy in Madrid, the Ministry
of Justice, the Supreme Court, the King of Spain and the Ombudsman,
and to their lawyer, complaining of an unfair trial and requesting
information on how to proceed further. The lawyer replied that his
legal aid services terminated upon the conclusion of the trial, and
that if they required further assistance from him they would have to
pay. The Ministry of Justice referred the authors to the court of
first instance. By letter of 15 January 1987, they requested the High
Court of Valencia for a retrial on the ground that their trial had
been unconstitutional and in violation of the European Convention. In
October 1987, they submitted for the sixth time a petition to the
High Court of Valencia, complaining of unfair trial and this time
requesting it to assign legal counsel to them. By note of 9 December
1987, the Court replied that their complaint was groundless and that
it could not deal with the matter.
3.7 In the meantime, and on 29 January 1987, they
submitted notification of their intention to appeal. Subsequently
they appointed a private lawyer to represent them. On 24 March 1987
the Supreme Court rejected the appointment of the private lawyer
because he was not registered in Madrid. On 24 July 1987 the authors
forwarded their grounds of appeal to the Supreme Court. Since the
authors were not allowed to defend themselves in person, the Court
appointed a legal aid lawyer on 17 December 1987. On 28 March 1988,
the lawyer submitted to the Court that he did not find grounds for
appeal, after which the Court appointed a second legal aid lawyer, on
12 April 1988, who also stated that he found no grounds for appeal.
On 6 June 1988, the Supreme Court, in conformity with article 876 of
the Code of Criminal Procedure of Spain, did not hear the appeal,
giving the authors 15 days to find a private lawyer. The authors then
wrote to the Bar Association (Colegio de Abogados), in
September 1987, requesting it to assign a lawyer and a solicitor
for their appeal; no reply was received, however.
3.8 In March 1988, the Ministry of Justice
informed the authors that they could initiate an action for
amparo before
the Constitutional Court, since the rights which they claimed had
been violated were protected by the Spanish Constitution.
3.9 On 6 July 1988, the authors (formally)
petitioned the court of first instance for their release, pursuant to
article 504 of the Code of Criminal Procedure, which provides that a
prisoner may be released pending the outcome of his or her appeal
when he or she has served one half of the sentence imposed. On 14
July 1988, the authors were released and returned to the United
Kingdom, having informed the Spanish authorities of their address in
the United Kingdom and of their intention to pursue the case.
3.10 The authors appealed (remedy of
amparo) to the
Constitutional Court on 17 August 1988. Upon their return to the
United Kingdom, the authors made several attempts to contact the
lawyer and solicitor in Spain, in order to obtain information on the
status of their appeal and the court documents, to no avail. Finally,
in April or May 1990, they were informed through the British Embassy
in Madrid that the Constitutional Court had decided not to allow the
appeal to proceed. With this, it is submitted, all available domestic
remedies were exhausted.
The complaint
4.1 The authors, who proclaim their innocence,
express their indignation at the judicial and bureaucratic system in
Spain. According to them, it was likely that they were the victims of
a swindle by the bar owner, who could have had a motive for setting
the fire. They protest that the identification parade was not
conducted in accordance with the law. They complain that the judge
did not intervene when it became clear that the legal aid lawyer was
not defending them properly. Moreover, by refusing to allow Michael
Hill to conduct his own defence and to call a witness on their
behalf, the judge violated the principle of equality of the parties.
It is submitted that the use by the police investigating unit and the
judge of Michael Hill's prior criminal record was unjust and
prejudicial not only to Michael but also to Brian Hill.
4.2 As to article 14, paragraph 2, the authors
claim that this principle was violated before, during and after the
trial: before the trial, because of the judicial authorities'
repeated refusal to grant bail; during the trial, when the judge told
Michael Hill that he would have the opportunity on appeal to defend
himself and to call a witness for the defence; and immediately after
the trial, before the verdict had been pronounced, when the legal aid
lawyer started to negotiate with their father about the handling of
the appeal.
4.3 The authors claim that the lack of cooperation
by the Spanish authorities, as a result of which they themselves had
to translate every single document with the help of other, bilingual
prisoners, the lack of information in prison on Spanish legislation
and the lack of competent interpreters during the interrogation by
the police and during the preliminary hearing, together with the
inadequate conduct of the defence by the State-appointed lawyer,
amount to a violation of article 14, paragraph 3(b), of the
Covenant.
4.4 Article 14, paragraph 3(d), is said to have
been violated in Michael Hill's case because, during the trial,
he was twice denied the right to defend himself in person. As a
consequence, article 14, paragraph 3(e), was also violated, as he was
also denied the opportunity to examine a witness on the brother's
behalf who was waiting outside the courtroom.
State party's information and
observations
5.1 In its statement of 11 April 1993, the State
party argues that the authors abused the right of submission and that
the communication should be declared inadmissible in accordance with
article 3 of the Optional Protocol. From the information provided by
the State party, including the texts of judgments and other
documents, it appears that the latter raises no objection with
respect to the exhaustion of domestic remedies.
5.2 The State party summarizes the situation in
this case as follows:
Concerning the detention:
1. On 16 July 1985, at
around 4 a.m., two individuals, in a metallic grey camper with
horizontal trim on the sides and rear and with a registration
beginning with the letter A, arrived at the JM club, located in Grao
de GandÌa, and, after preparing a Molotov cocktail, threw it
into the club, breaking several panes of glass above the door, then
immediately fled the scene, having thereby started a fire in the
premises.
2. An eyewitness to the incident called the
police.
3. The police arrived at the scene, together with
the fire brigade, and, after listening to the eyewitness, located the
camper, registration A811 JAB, inside which they discovered a
partly-empty plastic container with some four litres of petrol, and
arrested the occupants of the camper, Messrs. Brian and Michael
Hill.
4. In the presence of an interpreter, the
detainees were immediately informed of their rights.
5. In the presence of the interpreter and with the
assistance, at their request, of the legal aid lawyer on duty, the
detainees made a statement to the police. They said that they had
been in the club in the early hours of the day on which they were
making their statement and had drunk 5 or 6 beers there before
leaving at around 2.30 a.m. They admitted that the camper and the
petrol container belonged to them, but denied having started the
fire, acknowledging that >they had in fact passed close by (the
club) in the vehicle' after leaving the premises.
6. During the identification parade, the police
showed several persons to the eyewitness, and the said eyewitness
recognized Messrs. Hill as >the persons who had set fire to
the JM club the previous night by throwing a flaming bottle against
its door, and who had fled in a large camper with a foreign
registration'."
5.3 Concerning the appearance before the examining
magistrate:
1. On 17 July 1985, the
day after the incident occurred, the Hill brothers testified before
the examining magistrate at GandÌa, assisted by the legal aid
lawyer on duty, reiterating the statement they had made to the police
the day before.
2. Magistrate No. 1 ordered that various
proceedings be conducted including an appraisal of the damage caused,
which amounted to 1,935,000 pesetas. The other parties who had
appeared before the police, including the eyewitness, reiterated
their statements.
3. On 19 July, Magistrate No. 1 of GandÌa
issued an order to institute criminal proceedings against the Hill
brothers for the crime of arson, ordering them to be imprisoned and
bail to be set.
4. Further statements by the accused, an
additional police file containing photographs and information
provided by Interpol on the record of Michael John Hill, convicted in
the United Kingdom for theft, breaking and entry, fraud, possession
of stolen goods, forgery, traffic violations and arson.
5. Impoundment of the camper in connection with
the civil liability imposed during the pre-trial proceedings.
6. Order terminating the pre-trial proceedings,
issued by the court on 24 October 1985, and referral of the accused
to the Provincial High Court of Valencia. Summons of the accused, who
appointed a lawyer of their own choosing to conduct their
defence.
7. On 4 December 1985, the accused sent a
statement to a subdivision of the Provincial High Court of Valencia,
appointing Mr. Gunther Rudiger Jorda as their lawyer."
5.4 Concerning the oral proceedings:
1. The defence lawyer
chosen freely by the accused called only one witness, the same
witness as had been produced by the Public Prosecutor's Office, Mr.
P., the eyewitness to the alleged crime.
2. On 22 October 1986, it was announced that the
oral proceedings would take place on 3 November and the parties were
duly notified.
3. On 28 October 1986, a representative of the
defence lawyer communicated to the Chamber of the High Court hearing
the case that, >as differences had arisen between the accused and
the defence lawyer, he was withdrawing from the case'.
4. Court order for the accused to appoint a
lawyer. The Hill brothers indicated that they wished to be assigned a
legal aid lawyer.
5. Having been assigned a legal aid lawyer, they
were informed on 31 October 1986 that the date of the trial
would be 3 November 1986. Legal record of the trial on that day, in
which the Chamber hearing the case, in view of the lack of time given
to prepare the defence, agreed to adjourn the trial and reschedule it
for 17 November 1986.
6. On 17 November 1986, oral proceedings took
place. They opened with the defence submitting a statement by the
accused on what had occurred, which was admitted by the Chamber; the
direct opinion of the accused was thus made known. The trial was
held, using the services of an interpreter, and the eyewitness was
examined by both the prosecution and the defence.
7. On 20 November 1986, the Provincial High Court
of Valencia handed down its judgment, noting that the accused did not
have a criminal record, and after examining the facts sentenced the
Hill brothers to six years and one day in prison for the crime
of arson and imposed civil liability for the damage caused by the
fire."
5.5 Concerning the appeal to annul the judgment of
the High Court filed by the Hill brothers:
(a) Only Mr. Brian Anthony
Hill appeared at the appeal proceedings. He appointed Mr. Gunther
Rudiger Jorda as his lawyer, the same lawyer whom he and his brother
had previously appointed and then dismissed five days before the
trial;
(b) The two brothers submitted a statement to the
Supreme Court which was included in their case file;
(c) As Mr. Rudiger Jorda could not represent the
brothers in the Supreme Court, he requested that a legal aid lawyer
be assigned to Brian Anthony Hill;
(d) A legal aid lawyer was assigned, but he did
not find any grounds whatsoever to justify the appeal;
(e) A second legal aid lawyer, also appointed in
accordance with article 876 of the Code of Criminal Procedure, did
not find grounds for appeal either;
(f) Two lawyers in succession found that there
were no legal grounds for appeal. The proceedings were then referred
to the Public Prosecutor's Office, to see whether it could find
grounds for appeal. The Public Prosecutor's Office did not find
grounds for appeal either and referred the case back;
(g) An order was issued dismissing the appeal as
not properly made and granting the appellant the right to appoint a
lawyer of his choosing in order to put the appeal into proper legal
form;
(h) After he had failed to do so within the
required time period, the case was filed;
(i) During that time, the accused had violated the
conditions of their conditional release by abandoning the address in
Spain which they had given and fleeing the country."
5.6 Concerning the conditional release:
On 14 July 1988, the
Provincial High Court of Valencia, with the appeal to annual the
judgment still pending, granted the Hill brothers a conditional
release without bail and ordered them to appear on the first and
fifteenth day of each month. The accused gave the British Embassy as
their address, while they looked for an apartment."
5.7 Concerning the remedy of amparo:
On 16 August 1988, the
Hill brothers initiated an action for amparo before the Constitutional
Court, requesting that a legal aid lawyer be assigned to them. After
a lawyer was appointed, the application for amparo was submitted. On 8 May
1989, the Constitutional Court issued a reasoned and substantiated
ruling that the action for amparo was inadmissible."
5.8 Regarding civil liability, the State reports
that the camper, valued at 2.5 million pesetas, was offered at a
public auction but remained unsold. It was then handed over to the
owner of the bar as compensation for the damage caused in the
fire.
5.9 The State party notes:
That the accused were
granted a conditional release on 14 July 1988 and,
following the judgment of the Supreme Court in which the appeal was
dismissed, in violation of the conditions of their provisional
release, the Hill brothers left Spain, and that, >according to the
statement by the British Vice-Consul, the brothers, once they got out
of prison in July or August last year, left Spain and were not
residing with their parents, and were currently believed to be in
Portugal'. On 1 March 1989, the Provincial High Court of Valencia
therefore declared Michael John and Brian Anthony Hill to be in
contempt and ordered that they be sought and taken into
custody."
Authors' comments
6.1 In their comments of 6 July 1993, the authors
maintain that they are innocent and attribute their conviction to a
series of misunderstandings during the trial caused by the lack of
proper interpretation.
6.2 The authors reiterate that their rights were
violated, in particular the right to a fair trial with guarantees of
adequate time and facilities for the preparation of the defence, and
the right to defend oneself in person and to examine witnesses. The
authors reject the State party's accusation that they fled Spain as
soon as they were released, explaining that they fulfilled the
conditions of their provisional release and then returned to their
family in the United Kingdom, having informed the authorities of
their address there and of their intention to pursue the case in
order to prove their innocence. The Committee's file shows that the
Hill brothers did in fact write to the Constitutional Court in
February 1990 to inquire about the outcome of their appeal.
6.3 The authors reject the presumption of guilt
arrived at by the State party on the basis of an Interpol report on
Michael Hill. Firstly, the report refers to events which took place
in the United Kingdom more than 14 years ago and to a previous
criminal record which had been expunged and was therefore not
admissible in court. The use of the record by the Public Prosecutor's
Office was unfair and prejudicial and the authors had no opportunity
to refute it at the oral proceedings, which lasted barely 40 minutes.
They emphasize that Michael Hill was denied the right to defend
himself in person against the presumption of guilt and that,
furthermore, his legal aid lawyer failed to follow his instructions.
For those reasons, no defence was put forward on the matter of the
prejudicial presumption of guilt. Furthermore, the information which
the legal aid lawyer failed to refute also had a very harmful effect
on Brian Hill, who had no previous criminal record in the United
Kingdom.
Committee's decision on
admissibility
7.1 Before examining a complaint contained in a
communication, the Human Rights Committee decides, pursuant to rule
87 of the its rules of procedure, whether or not it is admissible
under the Optional Protocol to the Covenant.
7.2 The Committee ascertained, as required under
article 5, paragraph 2(a), of the Optional Protocol, that the matter
had not been submitted under another procedure of international
investigation or settlement. Taking into account all the information
submitted by the parties, the Committee concluded that the domestic
remedies referred to in article 5, paragraph 2(b), of the Optional
Protocol had been exhausted.
7.3 The Committee considered the statement by the
State party arguing that the Hill brothers had abused the right of
submission, but concluded that only an examination of the merits of
the case could clarify whether the Hill brothers had abused that
right and whether the State party had violated the Covenant.
7.4 The Committee considered that the allegations
made under article 14 had been sufficiently substantiated for
purposes of admissibility and, accordingly, should be examined on the
merits. The facts submitted to the Committee also appeared to raise
questions regarding articles 9 and 10 (see paras. 2.3 and 2.7
supra).
8. On 22 March 1995, the Human Rights Committee
found the communication admissible.
Observations by the State party
9.1 In its statement dated 9 November 1995, the
State party refers to its previous observations and to the documents
already submitted, and reiterates that the complaint is unfounded. In
its submission dated 30 May 1996, the State party contends that the
communication should be declared inadmissible on account of abuse of
the right of submission. It argues that the authors were placed on
provisional liberty on 14 July 1988 on condition that they would
appear before the Audiencia Provincial de
Valencia on the first of every month.
Instead of doing so, the Hill brothers left Spain and returned to
England. Because of their breach of the conditions of release and
violation of Spanish law, they are estopped from claiming that Spain
has violated its commitments under international law.
9.2 As to the merits of the communication, the
State party explains that the interpreter was not a person selected
ad hoc by the
local police but a person designated by the Instituto Nacional de Empleo
(INEM) upon agreement with the Ministry of Interior. Interpreters
must have satisfied professional criteria before being employed by
INEM. The records indicate that Isabel Pascual was properly
designated interpreter for the Hill brothers in GandÌa and
include a statement from INEM with respect to the assignment of Ms.
Pascual and Ms. Rieta.
9.3 As to the authors' desire to communicate with
the British Consulate, the State party contends that the documents
reveal that the Consulate was duly informed of their
detention.
9.4 As to the identification parade, the State
party rejects the authors' description of having been brought before
the witness in handcuffs and next to uniformed policemen. The State
party affirms that the procedural guarantees provided for in articles
368 and 369 of the Code of Criminal Procedure were duly observed.
Moreover, the identification parade took place in the presence of the
authors' attorney, Salvador Vicente MartÌnez Ferrer, whom the
State party contacted and who, according to the State party's
submission, rejects the authors' description of the events. A
document sent by the State shows that the two other persons in the
identification parade were Ainspectores" and formed part of the
Superior Police Corps, where no uniform is worn.
9.5 The State party rejects the allegation that
the Hill brothers had been kept for 10 days without food and encloses
a statement from the chief of the GandÌa Police and receipts
allegedly signed by the Hill brothers.
9.6 As to the duration of the criminal proceedings
up to the oral hearing: from 16 July to 24 October 1985
investigations, including into Michael Hill's prior criminal record,
were carried out. On 26 November the authors were notified and they
designated their attorney. On 4 December 1985 the file was referred
by the GandÌa Court to the Audiencia
Provincial de Valencia. On
28 December the case was referred to the State attorney, who
presented his report and conclusions on 3 March 1986. On 10 September
the Court fixed the date for oral hearing on 3 November. On 22
October 1986 defence counsel withdrew. On 28 October the Hill
brothers asked for a legal aid lawyer. On 30 October Mr.
Carbonell Serrano was appointed as legal aid lawyer. On 3 and 17
November oral hearings took place. The State party concludes that
this chronology indicates that there was no undue delay on the part
of the Spanish authorities.
9.7 The State party submits that the duration of
16 months of pretrial detention was not unusual. It was justified in
view of the complexities of the case; bail was not granted because of
the danger that the authors would leave Spanish territory, which they
did as soon as release was granted.
9.8 The State party contends that the authors had
sufficient time and facilities to prepare their defence. First they
had counsel of their own choosing, and when they dismissed him, legal
aid counsel was appointed and the hearing postponed to allow the new
counsel to familiarize himself with the case. It is not true that Mr.
Carbonell, the legal aid attorney, demanded 500,000 pesetas from the
authors before trial. He did demand 50,000 pesetas for the case that
they would want to appeal to the Supreme Court, an amount that is
altogether reasonable for counsel of one's choosing. The authors,
however, did not use his services, but availed themselves of the
services of two other legal aid lawyers. The State party denies the
authors' claim that the documentation was not made available to them
in English translation.
9.9 As to the oral hearing, it is stated that Ms.
Rieta was a well qualified interpreter and that the authors' only
witness, Mr. Pellicer, affirmed having recognized them and their
pickup truck.
9.10 As to Michael Hill's right to defend himself,
the records do not reveal that Michael Hill had demanded the right to
defend himself and that this right was denied by the court. Moreover,
Spanish law recognizes, pursuant to the Covenant and the European
Convention, the right to defend oneself. Such defence should take
place by competent counsel, which is paid by the State when
necessary. Spain's reservation to articles 5 and 6 of the European
Convention concern only a restriction of this right with respect of
members of the Armed Forces.
9.11 As to the presumption of innocence, the
authors admit their presence in the club and the number of beers
consumed. In view of the evidence given by an eyewitness, there is no
basis to claim that they were deemed guilty without evidence.
Authors' comments
10.1 By letters of 8 January and 5 July 1996 the
authors contest the State party's arguments on admissibility and
merits. As to the alleged abuse of the right of submission, the
authors claim that the State party, in view of its manifold
violations of their rights in the course of their detention and
trial, does not come to the Committee with clean hands. They contend
that they acted properly in leaving the territory of Spain, because
they feared further violations of their rights. Moreover, they did
not immediately leave Spanish territory upon their release from
prison on 14 July 1988 but five weeks later, on 17 August, with no
objection from the British Consulate at Alicante. They refer to the
transcript of their visit to the Consulate on 12 August 1988 in order
to obtain a temporary passport. Moreover, the State party had made no
provision for them to remain in Spain after release and all the
release documentation was in Spanish.
10.2 As to the interpreter, they maintain their
contention that Ms. Isabel Pascual made crucial mistakes of
interpretation, which ultimately led to their conviction. They have
no criticism of the other interpreter, Ms. Rieta, other than the
mistake concerning to the fuel used by their truck.
10.3 As to the identification parade, they
reaffirm their allegation contained in their submission of 6 July
1993.
10.4 They reaffirm that they did not receive any
food or drink for a period of five days and very little thereafter,
because the allocation of funds specifically for this purpose were
misappropriated. They point out that the State party's list does not
refer to the first five days, when they allege to have been totally
deprived of subsistence. The lists presented by the State refer to 11
days, and only two of these, the 21st and 24th July, show their
signature.
10.5 As to the necessary time and facilities to
prepare their defence, the authors maintain that they spent but two
brief periods with their legal aid attorney, Mr. Carbonell. They
maintain their allegation that Mr. Carbonell demanded half a million
pesetas from their parents on 1 November 1986.
10.6 Concerning the right of Michael Hill to
defend himself, it is said that the letter from the Pro Consul at
Alicante, dated 12 March 1987, substantiates their claim that the
right under the Spanish Constitution to defend oneself in court was
emphatically denied by the judiciary on two occasions.
Michael Hill made his desire to defend himself clear well in
advance of the Court proceedings via the official interpreter, Ms.
Rieta.
10.7 With respect to the length of the hearings,
the authors reiterate that the first hearing of 3 November lasted
only 20 minutes, in which period the question as to what fuel was
used by their vehicle was raised. There was no examination of the
defendants or of the witness on this occasion. The second hearing on
17 November lasted 35 minutes, mainly devoted to formalities. Thus,
the authors challenge the State party's assertion that the Court
could properly examine both defendants and one witness, bearing in
mind that every word had to be translated.
10.8 As to the presumption of innocence, they
claim that not only at trial, but throughout the proceedings they
were deemed to be guilty, although from the outset they always
affirmed their innocence.
Examination of the merits
11. The Human Rights Committee has examined this
communication in the light of all the information made available to
it by the parties, as provided for in article 5, paragraph 1, of the
Optional Protocol.
12.1 With respect to the State party's allegation
that the case should be declared inadmissible on account of abuse of
the right of submission, because the authors had breached their
conditions of release in violation of the Spanish law, the Committee
considers that an author does not forfeit his right to submit a
complaint under the Optional Protocol simply by leaving the
jurisdiction of the State party against which the complaint is made,
in breach of the conditions of his release.
12.2 With regard to the authors' allegations of
violations of article 9 of the Covenant, the Committee considers that
the authors' arrest was not illegal or arbitrary. Article 9,
paragraph 2, of the Covenant requires that anyone who is arrested
shall be informed, at the time of arrest, of the reasons for his
arrest and shall be promptly informed of any charges against him. The
authors specifically allege that seven and eight hours, respectively,
elapsed before they were informed of the reason for their arrest, and
complain that they did not understand the charges because of the lack
of a competent interpreter. The documents submitted by the State
party show that police formalities were suspended from 6 a.m. until 9
a.m., when the interpreter arrived, so that the accused could be duly
informed in the presence of legal counsel. Furthermore, from the
documents sent by the State it appears that the interpreter was not
an ad hoc
interpreter but an official interpreter appointed according to rules
that should ensure her competence. In these circumstances, the
Committee finds that the facts before it do not reveal a violation of
article 9, paragraph 2, of the Covenant.
12.3 As for article 9, paragraph 3, of the
Covenant, which stipulates that it shall not be the general rule that
persons awaiting trial shall be detained in custody, the authors
complain that they were not granted bail and that, because they could
not return to the United Kingdom, their construction firm was
declared bankrupt. The Committee reaffirms its prior jurisprudence
that pre-trial detention should be the exception and that bail should
be granted, except in situations where the likelihood exists that the
accused would abscond or destroy evidence, influence witnesses or
flee from the jurisdiction of the State party. The mere fact that the
accused is a foreigner does not of itself imply that he may be held
in detention pending trial. The State party has indeed argued that
there was a well-founded concern that the authors would leave Spanish
territory if released on bail. However, it has provided no
information on what this concern was based and why it could not be
addressed by setting an appropriate sum of bail and other conditions
of release. The mere conjecture of a State party that a foreigner
might leave its jurisdiction if released on bail does not justify an
exception to the rule laid down in article 9, paragraph 3, of the
Covenant. In these circumstances, the Committee finds that this right
in respect of the authors has been violated.
12.4 The authors were arrested on 15 July 1985 and
formally charged on 19 July 1985. Their trial did not start
until November 1986, and their appeal was not disposed of until July
1988. Only a minor part of this delay can be attributed to the
authors' decision to change their lawyers. The State party has argued
that the delay was due Ato the complexities of the case" but has
provided no information showing the nature of the alleged
complexities. Having examined all the information available to it,
the Committee fails to see in which respect this case could be
regarded as complex. The sole witness was the eyewitness who gave
evidence at the hearing in July 1985, and there is no indication that
any further investigation was required after that hearing was
completed. In these circumstances, the Committee finds that the State
party violated the authors' right, under article 14, paragraph 3(c),
to be tried without undue delay.
13. With respect to the authors' allegations
regarding their treatment during detention, particularly during the
first 10 days when they were in police custody (para. 2.7), the
Committee notes that the information and documents submitted by the
State party do not refute the authors' claim that they were not given
any food during the first five days of police detention. The
Committee concludes that such treatment amounts to a violation of
article 10 of the Covenant.
14.1 With regard to the right of everyone charged
with a criminal offence to have adequate time and facilities for the
preparation of his defence, the authors have stated that they had
little time with their legal aid lawyer and that when the latter
visited them for only 20 minutes two days before the trial, he did
not have the case file or any paper for taking notes. The Committee
notes that the State party contests this allegation and points out
that the authors had counsel of their own choosing. Moreover, in
order to allow the legal aid lawyer to prepare the case, the hearing
was adjourned. The authors have also alleged that even though they do
not speak Spanish, the State party failed to provide them with
translations of many documents that would have helped them to better
understand the charges against them and to organize their defence.
The Committee refers to its prior jurisprudence1 and recalls that the right
to fair trial does not entail that an accused who does not understand
the language used in Court, has the right to be furnished with
translations of all relevant documents in a criminal investigation,
provided that the relevant documents are made available to his
counsel. Based on the records, the Committee finds that the facts do
not reveal a violation of article 14, paragraph 3(b), of the
Covenant.
14.2 The Committee recalls that Michael Hill
insists that he wanted to defend himself, through an interpreter, and
that court denied this request. The State party has answered that the
records of the hearing do not show such a request, and that Spain
recognized the rights of Aauto defence" pursuant to the Covenant and
the European Convention of Human Rights, but that Asuch defence
should take place by competent counsel, which is paid by the State
when necessary", thereby conceding that its legislation does not
allow an accused person to defend himself in person, as provided for
under the Covenant. The Committee accordingly concludes that Michael
Hill's right to defend himself was not respected, contrary to article
14, paragraph 3(d), of the Covenant.
14.3 The Committee further observes that in
accordance with article 876 of the Spanish Code of Criminal
Procedure, the authors' appeal was not effectively considered by the
Court of Appeal, since no lawyer was available to submit any grounds
of appeal. Consequently, the authors' right to have their conviction
and sentence reviewed, as required by the Covenant, was denied to
them, contrary to article 14, paragraph 5, of the Covenant.
14.4 Given the Committee's conclusion that the
authors' right to a fair trial under article 14 was violated, it need
not deal with their specific allegations relating to the adequacy of
their representation by a legal aid lawyer, the irregularities of the
identification parade, the competence of the interpreters and the
violation of the presumption of innocence.
15. The Human Rights Committee, acting in
accordance with article 5, paragraph 4, of the Optional Protocol to
the International Covenant on Civil and Political Rights, finds that
the facts before it reveal a violation of articles 9, paragraph 3; 10
and 14, paragraphs 3(c) and 5, of the Covenant, in respect of both
Michael and Brian Hill and of article 14, paragraph 3(d), in respect
of Michael Hill only.
16. Pursuant to article 2, paragraph 3(a), of the
Covenant, the authors are entitled to an effective remedy, entailing
compensation.
17. Bearing in mind that by becoming a party to
the Optional Protocol, the State has recognized the Committee's
competence to determine whether there has been a violation of the
Covenant or not and that, pursuant to article 2 of the Covenant, the
State party has undertaken to guarantee to all individuals within its
territory or subject to its jurisdiction the rights recognized in the
Covenant and to provide an effective and enforceable remedy in cases
where a violation has been established, the Committee requests the
State party to provide, within 90 days, information on the measures
taken to give effect to the Committee's Views.
[Adopted in English, French and Spanish, the
English text being the original version. Subsequently to be issued
also in Arabic, Chinese and Russian as part of the annual report to
the General Assembly.]
A. Individual opinion by
Committee member Nisuke Ando
I concur with the Committee's Views with respect
to article 14. However, I am unable to concur with the Committee's
finding with respect to article 10.
According to the authors, they were held in police
custody for 10 days, for five of which they were allegedly left
without food and with only warm water to drink (see para. 2.7). The
State party rejects this allegation and encloses a statement from the
chief of GandÌa Police as well as receipts allegedly signed by
the authors (see para. 9.5). The authors assert that the allocation
of funds specifically for food was misappropriated and that the State
party's lists do not refer to the first five days, when they allege
to have been totally deprived of subsistence (see para. 10.4).
Nevertheless, as the Committee itself recognizes
(see para. 10.4), the lists refer to 11 days from 16 to 26 July 1985
and, contrary to the Committee's finding that the lists show the
authors' signatures only for 21 and 24 July, the authors' names with
signatures appear on the lists for all 11 days. All the signatures do
not seem exactly identical and it may be that the warders in charge
of food supply may have signed on the authors' behalf.
In any event, the authors have not presented any
evidence to refute the existence and content of the lists: that they
were left without food for the first five days of their police
detention remains a mere allegation. Under the circumstances, I am
unable to concur with the Committee's finding that the State party
has not provided sufficient elements to refute the authors'
allegation and that it is in violation of article 10 of the Covenant
(see para. 13).
Nisuke Ando [signed]
[Original: English]
B. Individual opinion by
Committee member Eckart Klein
I do not share the opinion expressed in paragraph
14.4 of the Views that the Committee need not deal with the authors'
specific allegations relating to the adequacy of their representation
by a legal aid lawyer, the irregularities of the identification
parade, the competence of the court-appointed interpreters and the
violation of the presumption of innocence.
The fact that the Committee found a violation of
the authors' right to a fair trial under article 14 regarding certain
aspects (article 14, paragraphs 3(c) and (d) and 5, of the Covenant)
does not release the Committee from its duty to examine whether other
alleged violations of the rights enshrined in article 14 of the
Covenant have occurred. According to the authors, violations of
article 14, paragraphs 1, 2 and 3(f), should have been
considered.
The Committee is not in a position analogous to
that of a national court which may and will, for grounds of time
constraints, restrict itself to the most evident reasons that by
themselves justify the nullification of the measure attacked. The
authority of the Committee's Views rests, to a great extent, on a
diligent examination of all allegations made by the authors and on a
convincing ratio decidendi. The influence of the Committee's Views on State party
behaviour will be strengthened only if all aspects of the matter have
been thoroughly examined and all necessary conclusions have been
argued clearly.
Apart from this objection of a general nature, I
do not think that article 14 of the Covenant should be seen just as
an umbrella provision of the right to a fair trial. It is true that
all provisions of the article are connected with the issue. But the
express formulation of the different aspects of the right to a fair
trial is founded on many varied good reasons, based on historical
experience. The Committee should not encourage any view that some
rights enshrined in article 14 of the Covenant are less important
than others.
I do not think that the facts presented by the
authors in this case reveal a violation of Covenant rights beyond the
findings of the Committee. But I feel obliged to make clear my own
point of view on this matter of principle.
Eckart Klein [signed]
[Original: English]
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Made public by decision of the Human Rights Committee.