Last Updated on October 2, 2020 by LawEuro
THIRD SECTION
CASE OF ROMERO GARCIA v. SPAIN
(Application no 31615/16)
STOP
STRASBOURG
September 8, 2020
This judgment is final. It can undergo retouching.
In the case of Romero Garcia v. Spain,
The European Court of Human Rights (third section), sitting as a committee composed of:
Helen Keller, President,
María Elósegui,
Ana Maria Guerra Martins, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the application (no 31615/16) directed against the Kingdom of Spain and of which a national of that State, Mr. Luis Emilio Romero Garcia (“the applicant”) applied to the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on May 18, 2016,
Having regard to the decision to bring the request to the attention of the Spanish government (“the Government”) on September 5, 2017,
Having regard to the observations of the parties,
After deliberating in the council chamber on July 7, 2020,
Delivers the following judgment, adopted on that date:
IN FACT
1. The applicant was born in 1967 and lives in Granada. He was represented before the Court by Me C. Fernández Bustos, lawyer.
2. The Government were represented by their Agent, Mr. R.-A. León Cavero, state lawyer, head of the human rights legal service at the Ministry of Justice.
3. On 28 December 2005, the applicant applied to the town hall of Alhendín (province of Granada) for the issuance of a permit for the construction of a tool shed on agricultural land which belonged to him and which was in the village. . Then, without waiting for the administration’s response, he began building the hut. Intended, according to him, for agricultural purposes, it was 50 m2 in area and 4 m high at the eaves. On the outside it looked like a residential building, and was connected to water, electricity and a septic tank. On the other hand, it did not have any equipment capable of storing tools, and the front door was not wide enough to allow the passage of agricultural machinery but rather looked like the entrance to a dwelling.
4. As the applicant failed to provide certain documents required for the file, the municipal technical staff submitted a first negative technical report on 31 January 2006. On June 12, 2006, he returned a second negative report for the same reasons. Consequently, on 20 October 2006, the municipal authorities considered that the applicant had withdrawn his request and decided to close the proceedings. This decision was notified to the applicant on 19 November 2006.
5. Nevertheless, the applicant completed the construction of the hut and applied for a first occupation permit from the town hall. The latter rejected this request on January 19, 2007, on the grounds that the construction did not comply with the general urban development plan (“the PGAU”) and that it also violated article 207 of the law. of Andalusia Town Planning (Law No. 7/2002 of December 17, 2002).
6. By a judgment of May 26, 2014, rendered after a public hearing, the Criminal Judge number 4 of Granada (“the judge”) declared the applicant not guilty of the violation of the rules of town and country planning ( Article 319 §§ 1 and 2 of the Criminal Code) of which he had been accused. After having checked whether the elements constituting the offense under the applicable law were met in the present case, he observed that at the time of the facts, the PGAU, administrative standard at the origin of the prosecutions initiated by the public prosecutor, was not published in its entirety in the Official Journal of the Province. It therefore considered that this plan was not in force when the applicant had followed the conduct alleged against him and that, therefore, the applicant could not have breached it.
7. Having found that the PGAU was not applicable in the present case, the judge rendered a judgment of dismissal without analyzing the case further.
8. In particular, the judge observed the following:
“As a preliminary, the defendant alleges a violation of the principle of legality: he maintains that, not having been published in full, the PGAU of Alhendín cannot serve as a legal basis for the action brought by the public prosecutor.
In reality, this is not a preliminary exception “stricto sensu”, but a substantive argument, which, if it is well founded, must lead to a judgment of non-suit in accordance with the applicable case law. , regardless of any other consideration.
(…) Article 319 applies to “non-building” land, a qualification that falls under urban planning decisions (…)
(…) All the reports on which the prosecution bases its accusation are based on the thesis that the construction [in question] does not comply with article 207 of the Andalusian planning law. This construction is located on land subject to special protection within the framework of territorial planning (…) according to the PGAU of Alhendín, partially published on July 21, 2005 in the Official Journal of the Junta de Andalucía, number 141. (…)
(…) the PGAU of Alhendín will come into force once its final approval is published in the Official Journal of the Province (…) Regarding the need to publish this subsidiary rule in its entirety, the Supreme Court has decided has been pronounced several times (…) and it has come to the conclusion that it is necessary and imperative that the full text of the applicable standards (…) be published (…)
Consequently, since the subsidiary standards of the Alhendín PGAU are not published in their entirety, the technical and legal expertises on which the prosecution is based, and which are themselves based on said subsidiary standards, have been established with regard to ‘a regulation which is not in force until it has been fully published, and which is therefore not applicable to the present case (…) It follows that the court must conclude dismissal. ”
9. The public prosecutor appealed against this judgment, arguing that the fact that the PGAU of Alhendín was not published should not necessarily lead to the pronouncement of a dismissal since article 319 of the penal code was a general provision referring to administrative standards, in particular Articles 46 and 52 of the Andalusian Town Planning Law. However, he considered, the cabin built by the applicant did not meet the requirements of these articles, and the applicant should therefore be sentenced.
10. By a judgment of 14 May 2015, which it delivered without having held a public hearing, the Audiencia Provincial de Granada declared the applicant guilty of the offense provided for in Article 319 § 2 of the Criminal Code and convicted him to six months imprisonment and payment of a fine. She also ordered the demolition of the illegally built hut.
11. The Audiencia Provincial accepted the facts as established by Criminal Judge number 4 in Granada. On the other hand, it considered that even if the PGAU was not applicable, it was necessary to apply the planning law of Andalusia. Thus, it considered that it had been proved that the applicant had erected a building on non-building land, without having obtained the approval of a request for modification of the urban plan or the authorization required by law. mentioned above.
12. Next, the Audiencia Provincial analyzed the elements of the offense, which the trial judge did not do. She held the following reasoning:
“(…) the defendant maintains that the silence of the administration was equivalent to a tacit authorization to build. Admittedly, the three-month period provided for in Article 172 of the Andalusian Town Planning Law had largely elapsed, but this circumstance is not sufficient for it to be considered that the construction of the building was authorized, because, as stated previously, the building permit can only be granted if a request for modification of the urban plan has first been submitted and approved. Once the application has been approved (…), the person concerned has a period of one year to apply for the building permit. In this case, no request for modification of the town plan has been submitted nor, therefore, processed and approved.
FOURTH. We are faced with a construction that could not be authorized, given that it is in a non-building zone. It is not disputed that the land is not constructible; however, with regard to the authorization to build, it must be taken into account that, the construction having the quality of housing according to the standard applicable at the date of the facts, namely the urban planning law of Andalusia, it could not be erected without the urban plan having been modified and then a building permit having been issued. As noted previously, no request for modification of the urban plan has been filed (…)
For these reasons, we consider that the established facts constitute the offense defined in article 319 § 2 of the penal code, which punishes (…) the fact for a client, a project manager or a director technique of erecting on non-building land a construction that cannot be authorized.
(…) The defendant is the owner of the land, the owner of the works and a practicing lawyer. He was therefore aware that he did not meet the legal conditions necessary for the authorization of the planned construction, neither in his own person, given that he is not a professional in agriculture, nor in to the plot, which is not intended for agricultural use. We therefore consider that the intentional element is present because, by requesting authorization to build a 50 m2 tool shed, (…) [the accused] concealed the protrusion of the foundations (…) and, when he was asked to provide additional documents in support of his request for a building permit, he did not respond to [this request]. Instead, he completed its construction, then applied for a first occupation permit, claiming that the administration’s silence on its building permit application was worth a tacit agreement (…) In view of these considerations, we believe that the defendant knew full well that he could not build on the plot, since he knew all the regulations to which it was subject, on the one hand as a practicing lawyer and on the other hand as owner of the plot and interested, also in view of the fact that he is party to several disputes with his sister and her husband concerning the said plot. (…) ”
13. The applicant brought an action for annulment of the proceedings before the Audiencia Provincial de Granada. By a decision of June 15, 2015, the Audiencia Provincial declared this action inadmissible.
14. Relying on Article 24 of the Constitution (right to a fair trial and to the presumption of innocence), the applicant lodged an amparo appeal with the Constitutional Court. By a decision notified on November 18, 2015, the high court declared the appeal inadmissible on the grounds that there had been no violation of a fundamental right liable to be the subject of an amparo appeal.
THE RELEVANT INTERNAL LEGAL FRAMEWORK
15. The relevant parts of Article 319 of the Criminal Code, in force at the material time, read as follows:
“(…)
2. Any owner, project manager or technical director who carries out unauthorized construction on non-building land is liable to a penalty of six months to two years of imprisonment and from twelve to twenty-four months of imprisonment. day-fine, and a six-month to three-year ban on practice.
3. In all cases, the judges and courts may, by a reasoned decision, order the demolition of the building and [the restoration of the premises to their condition prior to construction], at the expense of the author, without prejudice to compensation. owed to third parties in good faith (…) ”
PLACE
I. ON THE ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
16. Relying on Article 6 § 1 of the Convention, the applicant complained that the Audiencia Provincial de Granada had convicted him on appeal without having heard him in a public hearing, whereas the court of first instance instance had acquitted him.
17. In its relevant part in the present case, Article 6 § 1 is worded as follows:
“Everyone has the right to have their cause heard fairly (…) by a court (…) which will decide (…) whether the merits of any criminal charge directed against them. ”
A. Admissibility
18. Noting that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it does not, moreover, encounter any other ground of inadmissibility, the Court declares it admissible.
B. On the merits
1. Submissions of the parties
19. The applicant maintains that the Audiencia Provincial did not limit itself to re-categorizing the facts but also carried out a new assessment of the evidence already submitted, and that in doing so, it ruled on a subjective circumstance on concerning, namely the existence of fraud, without hearing his testimony directly in order to verify the presence of this subjective element of the criminal offense. He considers that in these circumstances, the holding of a public hearing was necessary and decisive and would have made it possible to directly assess the evidence relating to his conduct.
20. He does not comment on the Government’s argument that it did not ask to be heard before the Audiencia Provincial.
21. For their part, the Government considered that, in the present case, an appeal hearing was not necessary, since the questions decided by the Audiencia Provincial were purely legal and were based only on documentary evidence.
22. He indicates that the appellate court confined itself to rectifying the decision that the criminal judge had taken on the basis of elements which did not require respect for the principle of immediacy, that is to say to carry out a new assessment of the legal analysis made by the a quo judge of the constructible character or not of the land in the light of the existing regulations and of the question of whether the applicant knew that he had to request a building permit to the municipality. In this regard, it considers that the applicant, a practicing lawyer, should have known that he could not apply for a building permit without having obtained an amendment to the urban plan and that, therefore, he was necessarily in bad faith when, after having applied for the building permit for the hut, he applied for a first occupation permit, arguing that, by his silence, the administration had tacitly granted him a building permit (see paragraph 12 above).
23. He considers that after examining these elements, the Audiencia Provincial has reached a reasonable, reasoned and non-arbitrary conclusion by means of a strictly legal assessment based on a direct interpretation and application of the law. Finally, it indicates that the applicant did not request a hearing before the Audiencia Provincial.
2. Assessment of the Court
a) General principles
24. The Court observes that the legal problem raised in the present case corresponds to that examined in the Pardo Campoy and Lozano Rodríguez v. Spain (nos.53421 / 15 and 53427/15, §§ 32 41, 14 January 2020) and Hernández Royo v. Spain (no.16033 / 12, §§ 32 35, 20 September 2016). It therefore refers to the principles set out in those judgments.
b) Application of these principles in the present case
25. In the present case, the Court notes that it is not disputed by the parties that the Audiencia Provincial de Granada condemned the applicant, who had benefited from a dismissal at first instance, without having held public hearing nor, consequently, to have personally heard the person concerned.
26. Therefore, in order to determine whether there has been a violation of Article 6 of the Convention, it is necessary to take into account the role of the Audiencia Provincial and the nature of the issues it had to consider.
27. The Court recalls that in Spanish law the administration of evidence before the appeal court remains extraordinary and is limited to evidence which the applicant was unable to present at first instance, which were presented but rejected without reason, or which the appeal court declared admissible because, for reasons unrelated to the applicant, it was not possible to administer them at first instance (Article 790 § 3 of the Code of Criminal Procedure). Furthermore, Article 791 § 1 of the Code of Criminal Procedure in force at the material time provided that the decision to hold a public hearing on appeal fell, in the absence of new evidence, within the exclusive competence of the Audiencia Provincial, who could organize a hearing if they considered it necessary for a better understanding of the case or if a party so requested.
28. In the other cases relating to the same issue that it has examined (see, for example, Valbuena Redondo v. Spain, no 21460/08, 13 December 2011), the Court has held that a hearing is necessary when the appellate court “carry out [a] new appraisal of the facts deemed proven in first instance and reconsider them”, this question being beyond strictly legal considerations. It considered that in such a case, it was necessary to hold a hearing before reaching a judgment on the defendant’s guilt (Igual Coll v. Spain, no 37496/04, § 36, 10 March 2009).
29. In sum, it is essentially for the Court to decide, in the light of the particular circumstances of each case, whether the court responsible for ruling on the appeal has carried out a new assessment of the facts (Spînu v. Romania, no.32030 / 02, § 55, 29 April 2008).
30. In this connection, the Court observes that in the present case, the Audiencia Provincial de Granada had, as a court of appeal, the possibility of rendering a new judgment on the merits, which it did on 14 May 2015. It could then decide either to confirm the dismissal or to find the applicant guilty, after considering the question of the guilt or innocence of the person concerned.
31. The Court observed that in its judgment of non-suit, the court of first instance had analyzed only one of the objective elements of the offense: the point of knowing whether the administrative standard which the public prosecutor considered infringed was in force on the date of the facts. Having concluded that the PGAU was not applicable to the case at hand, the judge dismissed the case without analyzing the other elements of the offense.
32. For its part, the Audiencia Provincial set aside the judgment a quo without having heard the applicant personally in a public hearing. After admitting the facts which the Criminal Judge number 4 of Grenada had declared to be proven, she reassessed the means of proof which, in her opinion, were essential to determine the applicant’s guilt, namely the numerous documents in the file as well as other objective evidence such as expert opinions carried out in the context of the case.
33. It considered that the declared facts proved by the trial judge in themselves supported the existence of an infringement of the regional planning rules. In addition, it considered that it was not possible to exclude fraud in the applicant’s conduct: according to it, as the latter being the owner of the land, the contracting authority for the works and a practicing lawyer, he was necessarily aware, on the one hand, of the fact that he did not meet the personal conditions laid down in the law for obtaining a building permit (given that he was not an agricultural professional) and , on the other hand, that he was not using the plot in accordance with the use for which it was intended, namely agricultural use.
34. The Audiencia Provincial also considered that, as a lawyer, the applicant should be aware that under the applicable law it was only possible to apply for a building permit after having obtained a modification of the plan. planning, and respecting a period of one year from the approval of the modification request. She found in this regard that he had not submitted any modification request, so he could not obtain a building permit.
35. Thus, it was in the judgment of the Audiencia Provincial that the subjective circumstances concerning the applicant were first examined.
36. In its reasoning, the Audiencia Provincial changed the legal basis of the contested judgment. Unlike the situation examined in Bazo González v. Spain (no.30643/04, 16 December 2008), where the elements analyzed by the Audiencia Provincial were purely legal, and where the judges did not have to rule on the intentionality of the conduct of the accused, in In this case, the Audiencia Provincial did not limit itself to re-appraising strictly legal elements, it ruled on the question of whether the applicant had knowingly erected a building completely illegally. In the eyes of the Court, such an examination implies, by its characteristics, a position on decisive facts for the determination of the guilt of the person concerned (Igual Coll, cited above, § 35).
37. As in the Valbuena Redondo case (judgment cited above, § 37), the Audiencia Provincial in this case set aside the judgment at first instance after ruling on matters of fact and law which enabled it to determine the guilt of the accused. In this regard, the Court recalls that, when the court draws conclusions from subjective elements (as it did in the present case on the question of the existence of fraud), it cannot proceed to the legal assessment of the behavior of the accused without having previously established the reality of this behavior, which necessarily involves verifying whether the person concerned intended to commit the acts attributed to him.
38. However, in the present case, the questions dealt with were in part of a factual nature: the Audiencia Provincial condemned the applicant on appeal after having carried out a new assessment of elements such as the existence of fraud, without that the person concerned had the opportunity to be heard personally and to challenge this assessment in the context of an adversarial debate in open court. The Court therefore considers that this conviction does not comply with the requirements of a fair trial guaranteed by Article 6 § 1 of the Convention (Pardo Campoy and Lozano Rodríguez, cited above, § 39).
39. Finally, as regards the Government’s argument consisting in saying that the applicant did not request a hearing, the Court refers to the reasoning it followed in the Igual Coll judgment (cited above, § 32) .
40. These elements are sufficient for the Court to conclude that the extent of the examination carried out by the Audiencia Provincial in the present case made it necessary to hold a public hearing. Accordingly, there has been a violation of Article 6 § 1 of the Convention.
II. ON THE ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 7 TO THE CONVENTION
41. The applicant also maintains that his conviction, pronounced by the Audiencia Provincial on the basis of material which the lower court had not considered, deprived him of his right to a double degree of jurisdiction in criminal matters. He relies in this regard on Article 2 of Protocol No. 7 to the Convention, which reads as follows:
“1. Anyone convicted of a criminal offense by a court has the right to have the conviction or sentence reviewed by a higher court. The exercise of this right, including the reasons for which it can be exercised, are governed by law.
2. This right may be subject to exceptions for minor offenses as defined by law or when the person concerned has been tried in first instance by the highest court or has been convicted and sentenced to death. following an appeal against his acquittal. ”
42. The Government contested this thesis.
On admissibility
43. The Court recalls that the Contracting States have in principle a wide discretion to decide on the modalities for the exercise of the right provided for in Article 2 of Protocol No. 7 to the Convention. Thus, the review by a higher court of a conviction or conviction may relate either to questions of fact and law or to points of law only. However, the limitations imposed by domestic laws on the right of appeal protected by this provision must, by analogy with the right of access to court enshrined in Article 6 § 1 of the Convention, pursue a legitimate aim and not infringe the very substance of this right (Krombach v. France, no. 29731/96, § 96, ECHR 2001 II, and Galstyan v. Armenia, no. 26986/03, § 125, 15 November 2007).
44. In the present case, the Court notes that the charges against the applicant were examined by two levels of jurisdiction. Indeed, both the criminal judge and the Audiencia Provincial examined the case on the merits, and it does not appear that their reasoning was arbitrary or unreasonable or that it limited the applicant’s right of appeal in any way. contrary to the requirements of the cited provision.
45. It follows that this complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention.
III. ON THE APPLICATION OF ARTICLE 41 OF THE CONVENTION
46. Under article 41 of the Convention,
“If the Court declares that there has been a violation of the Convention or of its Protocols, and if the internal law of the High Contracting Party allows the consequences of such violation to be only imperfectly erased, the Court grants the party injured, if necessary, just satisfaction. ”
A. Too bad
47. The applicant’s principal action is to quash the judgment of the Audiencia Provincial. In the alternative, he claims, for non-pecuniary damage, 25,000 euros (EUR), and for pecuniary damage, the following sums: 1,076.90 EUR (demolition costs), 605 EUR (removal of furniture), 43,207 EUR ( estimated value of the demolished building) and, finally, 4,320 EUR (amount of the fine imposed on him by the Audiencia Provincial de Granada).
48. The Government opposes these requests.
49. The Court observed that the amount claimed had its origin in the judgment of the Audiencia Provincial, which it found to not comply with the requirements of Article 6 § 1 of the Convention. It considers in principle that the most appropriate form of redress for a violation of Article 6 § 1 is to ensure that the applicant finds himself as far as possible in the situation which he would have been if this provision had not has been overlooked (Tétériny v. Russia, no 11931/03, § 56, 30 June 2005, Jeličić v. Bosnia and Herzegovina, no 41183/02, § 53, ECHR 2006 XII, Mehmet and Suna Yiğit v. Turkey, no 52658 / 99, § 47, 17 July 2007, and Atutxa Mendiola and Others v. Spain, no 41427/14, § 51, 13 June 2017). It considers that this principle is applicable in the present case. It observes that domestic law (Article 954 § 3 of the Code of Criminal Procedure as amended by Law No. 41/2015 of 5 October 2015) provides for the possibility of reviewing final decisions declared to be contrary to the rights recognized in the Convention by a judgment of the Court.
50. Consequently, it considers that the most appropriate form of redress would be, provided the applicant so requests, to review the proceedings in accordance with the requirements of Article 6 § 1 of the Convention, in application of the provisions of the ‘Article 954 § 3 of the Code of Criminal Procedure (see, mutatis mutandis, Gençel v. Turkey, no 53431/99, § 27, 23 October 2003).
B. Costs and expenses
51. The applicant also claimed EUR 12,893.84 for costs and expenses which he claims to have incurred. This request is broken down as follows: EUR 593.26 for expert’s fees, EUR 185.93 for the attorney’s fees (procurador) of Granada, EUR 350 for the fees of the attorney of Madrid who represented him in the context of the amparo appeal, EUR 2,420 for the costs relating to the proceedings before the Constitutional Court, EUR 726 for the costs of the invalidity proceedings initiated before the Audiencia Provincial and EUR 7,260 for the costs relating to the proceedings before the Court.
52. The Government requested that these claims be dismissed.
53. The Court reiterates that, according to its case-law, an applicant can obtain reimbursement of his costs and expenses only to the extent that their reality, their necessity and the reasonableness of their rate are established (Iatridis v. Greece (satisfaction fair) [GC], no.31107 / 96, § 54, ECHR 2000 XI).
54. In the present case, it finds that the applicant has not produced proof of payment of the sums claimed for legal fees. Accordingly, it denies the request made in this regard.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning Article 6 § 1 admissible and the remainder of the complaint inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Dismisses the claim for just satisfaction.
Olga Chernishova Helen Keller
Deputy Registrar President
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