Luis Bertelli Gálvez v. Spain

The author of the communication, dated 2 December 2004, is Luis Bertelli Gálvez, a lawyer of Spanish nationality born in 1949. He is represented by counsel Mr. Mazón Costa. He claims to be a victim of violations of articles 14, paragraph 1 and 5, and article 17 of the Covenant. The Optional Protocol entered into force for Spain on 25 April 1985.

In 1984, the author was said to be a well respected lawyer in Malaga. He was known to have denounced abuses allegedly committed by local judges. On 18 May 1984, one Mr. Bohsali, accompanied by a police agent, visited the author’s office. Mr. Bohsali had been investigated by Interpol in five countries and there were five criminal proceedings pending against him before Spanish courts. The author decided to assume the defence of Mr. Bohsali, who paid him part of his fees in advance. While the author was in the Canary Islands, where Mr. Bohsali had been indicted, the latter was arrested in Seville, but later released. According to the author, the police induced Mr. Bohsali to believe that the author had done nothing to help him but had deceived him. Accordingly, Mr. Bohsali filed for fraud against the author.

Proceedings against the author were conducted by a judge who was allegedly biased against him. The author was indicted by the First Chamber of the Provincial Court of Malaga (Sección Primera de la Audicencia Provincial de Malaga). The author filed criminal charges against the judges in the Supreme Court, alleging that they had committed an offence by handing down a manifestly unjust decision against him. The Supreme Court dismissed his allegations. In December 1985, the First Chamber of the Provincial Court of Malaga, allegedly composed of the same judges who had indicted him, sentenced him for fraud. The author states that the judgment characterised him in public as a swindler, a lawyer who had received payment in advance and had done nothing to defend his client.

On 13 December 1985, the author appealed to the Supreme Tribunal, alleging that the Provincial Court did not consider the evidence presented by him to demonstrate that he had duly performed his lawyer’s duties. In November 1998, the Supreme Court dismissed the author’s appeal, stating that it was not the task of the Court to weigh the evidence in the case. While this appeal was still pending before the Supreme Court, the Constitutional Court handed down a judgment in which it decided that a judge who indicted an accused could not participate in the judgment against the same accused. The Supreme Court allegedly totally ignored the Constitutional Court’s decision in the author’s case.

The author then appealed to the Constitutional Court, alleging that he was tried by biased judges who had sentenced him notwithstanding he had denounced them for handing down an unjust indictment against him. He also alleged that the appeal (cassation) did not fulfil the requirements of article 14, paragraph 5, of the Covenant, and that he was sentenced in violation of the principle of the presumption of innocence. On 19 June 1989, the Constitutional Court dismissed the appeal. The Court considered that the denunciation of the judges was not sufficient to recuse them because it was filed after the proceedings against the author had been instituted³. The Court also considered that the appeal (cassation) satisfied the requirements of the Covenant.

3. According to the judgment of the Constitutional Court, the Court decided that the alleged violation of lack of impartiality of the judges was inadmissible due to the author’s failure to raise the issue before the Supreme Court ↩

The author appealed to the European Commission of Human Rights, alleging that the judges who tried him were not impartial. On 29 May 1991, the Commission found that the application was inadmissible for non-exhaustion of domestic remedies⁴. The author considers that the Commission did not “examine” his application within the meaning of article 5, paragraph 2 (a), of the Optional Protocol. The alleged violation of article 14, paragraph 5 of the Covenant, or its equivalent under the European Convention on Human Rights, was never submitted to the Commission.

4. The Commission considered that the allegation related to the lack of impartiality was not raised in the appeal (cassation) to the Supreme Court. ↩

The author claims a violation of article 14, paragraph 5, of the Covenant because he could not get a re-evaluation of the evidence in his case.

The author alleges a violation of article 14, paragraph 1, of the Covenant because he was sentenced by biased judges who had previously indicted him and who had been denounced by him. The judgment handed down by these judges was silent on all the evidence presented by the author to prove his innocence.

The author further alleges a violation of article 17 of the Covenant because the sentence of the Provincial Court of Malaga depicted him as a swindler, notwithstanding the evidence he presented. As a result of the judgment, his reputation was affected before public opinion.