Communication
2890/2016
Submission: 2016.04.26
View Adopted: 2020.07.23
The author of this communication is M.R.S, a Moroccan national born on the 10th of August 1983. He claims that he is to be a victim of violations of his rights under article 14 of the Covenant of the International Covenant on Civil and Political Rights.
On the 18th of January 2014, the authors was forcefully arrested by the police and brought before Court of Investigation No.1 of Jaén on seven counts of theft with force and intimation relating to acts committed between December 2013 and January 2014, incidents involving the theft, with the use of force, of small sums of money between 22 and 40 euros, and mobile telephones, with the victim in one incident sustaining a knife wound.
On the 11th of January 2014, a local newspaper published a front page story about the incidents, with a photograph of the authors in handcuffs being escorted by a police officer.
On the 15th of January 2014, during the pretrial proceedings instituted against him on the basis of the theft victims’ complaints, the author asked the Court of Investigation No.1 to order 5 measures to be taken: (1) that the fingerprints on the bags of the three victims be examined, (2) that a video recording from a bank automatic teller machine be requested, (3) that an in-person line-up be conducted, (4) that a voice line-up be conducted with the involvement of the alleged victims and (5) that J.M be located. This J.M. sold the stolen phones to people, who were in full knowledge that these phones had been stolen.
According to the author, this J.M. had a strong resemblance to him, and that he was in fact the actual perpetrator. The Court refused to follow 4 of the measures ordered by the author but agreed to the in-person line-up. The requests for the fingerprints and for the voice line-up were refused due to the fact that a certain amount of time had lapsed. The video from the automatic bank teller was refused because the video was being used for another criminal investigation relating to another case. The request to locate J.M. was refused as this would have infringed on the individual’s right of defence, as there was no evidence to support such an accusation against him. According to the author, J.M. has fled to Belgium after having committed the offences.
On the 19th and 22nd of January 2014, Y.R. went to the police station and stated that he had knowingly purchased three stolen mobile telephones from J.M. in late 2013 and in early 2014. According to the police report, Y.R went to the police station as he was a childhood friend of the author, and that he knew someone else, J.M., had committed these offences. On the 2oth of January, the Police questioned the witnesses and victims, and they stated that they did not recognise J.M. but had recognised the author. Following Y.R.’s report, the victims ascertained that the three stolen phones were theirs, but still stated that the attacker was the author and not J.M. Due to his confession, Y.R. received a fine of 3 euros per day for a period of 6 months for having bought the stolen phones with the knowledge that they were stolen.
On February 6th 2014, the Court Investigation No.1 ordered the commencement of summary proceedings against the author for his involvement in committing seven counts of theft with force and intimidation, including one count of attempted theft, one count of bodily harm and four counts of assault. The author then filed with the Court an application for reconsideration or, in alternative, leave to appeal the decision. The author claimed that his right to defence has been violated when the pretrial proceedings were concluded after only 16 days and that he had not received the appropriate amount of time to prepare a proper defence because the measures that he had requested during the pretrial phase were refused. In addition to this, the author requested that these measures be granted.
On the 24th of February 2014, the Court dismissed the authors application for reconsideration on the grounds that the conclusion of the pretrial phase had not deprived him of a defence, as the purposes of that phase was to determine whether or not there was a prima facie case against the author – it was not used to establish innocence of guilt. And additionally, that these requests made could be made again during the trial. In the same judgement, the Court granted the author leave to appeal the decision before the Jaén Provincial High Court. On the 19th of March 2014, the Provincial High Court dismissed the authors appeal against the decision handed down by the Court of Investigation No.1.
On the 5th of March 2014, the author submitted a defence brief requesting that the testimony of his spouse, who maintained that the authors was at home when the incidents occurred, be heard. In the same brief, the author requested the following measures: (1) that the leak of his police record on social media be investigated, (2) that the video recording from the bank automatic teller machine and security footage from various banking institutions be requested, and (3) that the proceedings be joined with those from another ongoing case.
The oral proceedings then took place on the 19 of June 2014. On the 20th of June 2014, the Court of Investigation No.1 found that the author was guilty of one count of theft with force and intimidation, five counts of theft with force and the use of a weapon, one count of attempted theft with force and intimidation, one count of bodily arm and four counts of assault. They then imposed several penalties that amounted to 25 years’ imprisonment, with the actual time served not to exceed 12 years. The author then appealed this judgement to the Jaén Provincial High Court.
On 8 September 2014, the Provincial Court dismissed the author’s appeal. On the 21 October 2014, the author filed an application for amparo with the Constitutional Court – alleging violations of his right to an effective judicial remedy, his right to use means relevant for his defence and his right to be presumed innocent, which are recognised under article 24 of the Constitution. On the 11 March 2015, the Constitutional Court refused the author’s application on the grounds that he had not demonstrated its special constitutional significance, in accordance with article 49(1) of the Organic Act on the Constitutional Court.
Due to this, on the 20th of August 2015, the author filed an application with the European Court of Human Rights. On the 7th of September 2015, the Registry of the Court returned the application to the author and informed him that the court could not examine his complaints because the Summary of the facts contained in his application exceeded the page limit (of 3 pages) set under article 47(2)(b) of the Rules of the Court.
Due to this, the author has approached the committee and claims to be a victim of a violation by the State Party of article 14 of the Covenant, as the swiftness of his pretrial proceedings, which only lasted 16 days, impaired his right to mount a proper defence.
The author also claims that the criminal proceedings against him were arbitrary – that the conviction against him were based primarily on photographic identification procedures that were conducted by the police in an irregular manner. The author claims that he was mistakenly arrested and charged with crimes that were actually committed by J.M., who bears a strong physical resemblance to him. He claims this due to the fact that the police used a photograph of him taken in 2007, and not one taken recently. He further claims that the police leaked the photograph, as well as his criminal record on social networks so that the victims would identify him as the perpetrator. The victims claim that the photograph from 2007, and the photograph taken in 2014 at his arrest were the same person. The author claims that his physical appearance in the two photographs is noticeably different, and that the victims were swayed by the police in order to identify him. ( Accordingly, one of the victims were unable to identify the author based on the 2007 photograph, and only identified him in the in-person line-up and the 2014 photograph).
In addition to this, the author was hidden from the victims behind a screen, the use of which was unwarranted, as the proceedings involved no protected witnesses. Furthermore, two of the counts of theft imputed to the author were committed 15 minutes apart, in two separate locations. According to the judgement of the Court of first instance, this argument could not hold, as Google Maps indicated that it was in fact possible to cover this distance on foot at the time.
The courts also arbitrarily refused various requests made by the author, that could have provided exculpatory evidence. Moreover, they did not investigate J.M., the true perpetrator. The author claims that the police refused these requests, as they would have proved that he was not the perpetrator and the requests were not geared at making him guilty. The author states that the police refused to investigate other crimes that happened around the same time, due to the fact that the victims had not called upon him as the perpetrator. That these offences were committed by J.M.
The author states that if he had had more time to prepare an adequate defence, he could have called upon these witnesses to testify on his behalf. In the authors view, this arbitrariness stems from the fact that he was being discriminated on the basis of his Arab origin.
Additionally, the author claims that the victims were being influenced by the article published in the local newspaper on the 11th of January 2014, in order to reinforce the belief of those who had identified him.
The author claims that there was no opportunity for a higher tribunal to review the conviction and the sentence handed down by the Court of Investigation No.1. That even the prosecutor had stated that his request to have the credibility of witnesses reviewed may not be made on appeal, except in cases that are clearly arbitrary. According to the author, this demonstrates that the higher tribunal cannot be considered to have reviewed the conviction or the sentence.
Finally, the author claims that the penalties imposed are disproportionate, inhuman and discriminatory with respect to the offences committed, since there are homicide-related offences that, when mitigating circumstances are found, only receive 6 years’ imprisonment.
Before considering any claim contained in the communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol to the Covenant.
The Committee notes that the author filed an application with the same facts with the European Court of Human Rights and recalls that, when Spain ratified the Optional Protocol, it entered a reservation that excluded the Committees competence in matters that had been or were being examined under another procedure of international investigation or settlement.
The Committee notes that as per the letter received by 7 September 2015, the author was informed that his complaint would not be examined because his application failed to meet the requirements. The Committee recalls its jurisprudence, relating to article 5(2)(a) of the Optional Protocol, that states that when the European Court bases a declaration of inadmissibility not solely on procedural grounds but also on grounds arising from some degree of consideration of the substance of the case, then the matter should be deemed to have been examined within the meaning of the respective reservation to the article. In this present case, the Committee notes that the decision by the European Court simply indicates that the application fails to meet the requirements with respect to form. Accordingly, the Committee considers that the authors complaint has not been examined and will not be limited by the reservations under article 5(2)(a) of the Optional Protocol.
The Committee notes that the author claims to be a victim of a violation by the State party of article 14 of the Covenant in that the swiftness of the pretrial proceedings, which only lasted 16 days, impaired his right to mount a proper defence and that the criminal proceedings against him were arbitrary. The Committee also notes that the State party has argued that the author has failed to appropriately substantiate his claims under article 3 of the Optional Protocol. The Committee then notes that the author states that the speed at which the pretrial was held impaired his right to form a proper defence, where the State party then hold that the swiftness of the proceedings protected the authors rights under article 14(3)(c) of the Covenant. The Committee notes that according to the judgment of the High Court, the purpose of the pretrial was not to establish guilt or innocence, but just to form a prima facie case against the author.
The Committee notes that on the 8th of January 2014 the author was arrested and that then on the 20th of June, the author was then found guilty. This meant that the author had 6 months to prepare his defence, meaning that the author has sufficient time to prepare an adequate defence. Therefore, the committee finds for the purposes of admissibility, the author has failed to properly substantiate his claim that the pretrial phase lasting 16 days did not give him adequate time, and finds this part of the communication inadmissible under article 3 of the Optional Protocol.
Additionally, the committee notes the authors claims that the police officers leaked his file to the press and onto social networks in order to implicate him in the alleged offences, and that this was motivated on the basis of his ethnic origin. The Committee confers that even though the State party has an obligation to ensure that the author’s right to be presumed innocent is to be respected, the author does not point out specific facts as to prove his the State officers intended to incriminate him or how the officers had handled similar cases differently. Moreover, the author has failed to file any complaints about this specific matter to the national authorities, thus the Committee finds this point inadmissible under the article 2 of the Optional Protocol, due to failure to exhaust domestic remedies.
Additionally, the committee notes that the author has made numerous claims that the courts acted arbitrarily in his case, based on how photographic identification was used, excluding exculpatory elements from the case, allowing testimonies to be biased or manipulated, making use of online tools without corroboration, handing down a disproportionate penalty and using a partition to separate the author from the victims during the oral proceedings, all of which he claims was arbitrary. The Committee recalls that through its jurisprudence, an assessment of facts and evidence and the application of domestic laws are, in principle, matters for domestic courts, unless upon assessment the Committee can find an application that would amount to a denial of justice. To this, the State party explained that through their domestic regulations and laws, that all measures taken were legal amongst their domestic systems and were used in accordance with their laws. Additionally, that the penalty received by the author, was based on the evidence obtained throughout the trial.
The Committee considers that the information received by both the parties, allow them to conclude that the evaluation of the evidence, as well as handing down of the sentence was not arbitrarily done and that the Committee does not wish to intervene in this respect. Therefore, the Committee is under the view that the author has failed to correctly substantiate this violation in the complaint that the courts acted arbitrarily during his trial. Therefore, the Committee finds this part inadmissible, according to article 3 of the Optional Protocol. It should be noted that the author did not challenge the use of the partition during the oral proceedings, and therefore could not have exhausted domestic remedies in respect of this claim, so this part of the communication would be declared inadmissible according to article 2 of the Optional Protocol.
Finally, the Committee notes the author’s claim that he was unable to have his conviction and sentence reviewed by a higher court, with the prosecutor’s officer itself stating that the validity of the testimonies could not be re-examined. To this, the Committee recalls that the author appeals his judgement issued by the Court of Investigation No.1 to the Jaén Provincial High Court, which examined both evidentiary value of the victims’ identifications and all the claims made by the author in his appeal. The Committee therefore is in the view that the author failed to substantiate, for the purposes of admissibility, his claim that he was unable to have his conviction and sentence reviewed and declares it inadmissible under article 3 of the Optional Protocol.
Therefore, the Human Rights Committee decides that the communication would be declared inadmissible according to articles 2 and 3 of the Optional Protocol.
