DE SALVADOR TORRES v. SPAIN (50/1995/556/642) 24 October 1996: increasing sentence.

SUMMARY
Spain - aggravating circumstance not expressly mentioned in the charge relied on by appellate court to increase sentence (Article 10 § 10 of the Criminal Code)

Article 6 § 3 (a) of the Convention
Investigating judge and prosecutors characterised facts as offence of embezzlement of public funds - applicant convicted by Audiencia Provincial of more general offence of simple embezzlement - but sentence increased by the Supreme Court, which found an aggravating circumstance (offender had taken advantage of the public nature of his position).
Such circumstance was an element intrinsic to the original accusation of embezzlement of public funds and known to applicant from outset of proceedings - thus open to Supreme Court to take account of it in sentencing.

Conclusion: no violation (unanimously).

I. Particular circumstances of the case
6. The applicant, Mr de Salvador Torres, was born in 1928 and is resident in Barcelona.
7. In June 1966, in his capacity as head administrator of a public hospital in Barcelona (Hospital Clínico y Provincial), the applicant made an agreement with a bank to the effect that interest on deposits would be paid at a higher rate than that applicable by law. The applicant arranged for payment into his personal account of the excess amounts corresponding to the difference between the legal rate of interest and that of the additional interest (extratipos) paid by the bank on the sums deposited.
Between 1966 and 1983 a total sum of 147,614,565 pesetas were thus transferred to the applicant.
8. In 1983 criminal proceedings were brought against the applicant. By a decision of 16 March 1984 (auto de procesamiento), Barcelona investigating judge no. 2 found that the facts established by him disclosed the offence of embezzlement of public funds (malversación de caudales públicos) under Article 394 § 4 of the Criminal Code (see paragraph 15 below), carried out not by a civil servant stricto sensu but by a person entrusted with funds belonging to a public institution (Article 399 of the Criminal Code - see paragraph 16 below). The applicant was subsequently committed for trial in the Barcelona Audiencia Provincial.
The public prosecutor and the hospital, acting as a private prosecutor, lodged submissions which essentially endorsed the findings of the investigating judge and requested, inter alia, that the applicant be sentenced to fifteen years' imprisonment.
The State Counsel (Abogado del Estado), appearing also as a private prosecutor on behalf of the State finances, submitted that the facts of the case constituted the offence of corruption of a civil servant.
9. In a judgment of 12 September 1988, the Audiencia Provincial, held that, although the applicant fell into the category provided for in Article 399, the sums embezzled by him were not "public funds" and, accordingly, Article 394 § 4 was not applicable. It further held that, owing to his particular personal status in the hospital, the applicant could not be considered a civil servant stricto sensu. It therefore dismissed the charges of corruption. The applicant was nonetheless convicted of the offence of simple embezzlement (apropiación indebida) under Article 535 (see paragraph 17 below) and sentenced to 18 months' imprisonment pursuant to Articles 528 and 529 § 7 of the Criminal Code (see paragraphs 18 and 19 below). The Audiencia Provincial did not find any aggravating circumstance of general application (see paragraph 21 below).
10. The public prosecutor and the hospital appealed on points of law. They described the amounts in question as public funds and again requested the applicant's conviction for the offence of embezzlement of public funds under Articles 394 § 4 and 399 of the Criminal Code. In his submissions, the public prosecutor stressed the fact that the Audiencia Provincial had clearly acknowledged that the applicant was a person entrusted with funds belonging to a public institution for the purposes of Article 399.
11. The applicant did not appeal, thereby accepting the facts as established by the Audiencia Provincial, their legal classification and the sentence.
12. In two subsequent decisions of 21 March 1990, the Supreme Court (Tribunal Supremo) found that, although the sums embezzled could be considered public, the offence under Article 394 § 4 did not apply since the hospital was not legally entitled to those sums. Contrary to the Audiencia Provincial, the Supreme Court further held that:

"... In any event, it is true that, even if Article 394 of the Criminal Code (embezzlement of public funds) cannot be applied, the fact remains that the accused Mr de Salvador is a civil servant and that he took advantage of his position in order to commit the offence of which he was found guilty. Therefore, ... the aggravating circumstance in Article 10 § 10 must be applied. To put it in a graphic manner: if the offence of embezzlement of public funds cannot apply due to the lack of the objective element, the aggravating circumstance must apply given the offender's legal position."

The Supreme Court therefore quashed the judgment being appealed and convicted the applicant of the offence of simple embezzlement with the aggravating circumstance that he had taken advantage of the public nature of his position in performing the duties entrusted to him (Article 10 § 10 of the Criminal Code - see paragraph 21 below). In doing so, the Supreme Court considered that a request to apply this aggravating circumstance could be inferred from the public prosecutor's submissions (see paragraph 10 above). In the exercise of its powers (see paragraph 22 below), the Supreme Court sentenced the applicant to five years' imprisonment, the maximum term of imprisonment for the offence of embezzlement under the rules for the determination of sentence set forth in Article 61 § 2 of the Criminal Code (see paragraph 20 below).

13. Mr de Salvador Torres filed an amparo appeal in the Constitutional Court (Tribunal Constitucional). He asserted that he had not been informed of all the components of the charge against him and that, accordingly, his right to a fair trial had been violated (Article 24 of the Constitution).1

By a decision (auto) dated 20 July 1992, the appeal was declared inadmissible on the ground that it did not disclose any relevant issues of constitutional law. The Constitutional Court found that the applicant was well aware that the charges against him presupposed not only that the offender's position was equivalent to that of a civil servant, but also that he had taken advantage of that position in the commission of the offence. He had therefore had the possibility to address that issue throughout the proceedings and his defence rights had not been forfeited.

ALLEGED VIOLATION OF ARTICLE 6 § 3 (a) OF THE CONVENTION

27. Mr de Salvador Torres alleged that the fact that he had been convicted of an offence with an aggravating circumstance with which he had never been expressly charged constituted a violation of Article 6 § 3 (a) of the Convention which, in so far as relevant, reads:

"Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, ... and in detail, of the nature and cause of the accusation against him;"

28. The Commission shared the applicant's view. Noting that that provision should be examined in the broader context of a fair trial under Article 6 § 1, it considered that, for the purpose of preparing his or her defence, a person charged with a criminal offence is entitled to be informed not only of the material facts on which the accusation is based but also of the precise legal classification given to these facts. Since the finding of an aggravating circumstance led to a heavier sentence being imposed, the applicant should have been formally notified that such a finding was possible in his case.
29. The Government, for their part, contended that the applicant must always have known that his position as head administrator of a public hospital could give rise to the finding of the aggravating circumstance in Article 10 § 10 of the Criminal Code (see paragraph 21 above). They observed that the provisions on which the charges of embezzlement of public funds against him were based (Articles 394 § 4 and 399 of the Criminal Code - see paragraphs 15 and 16 above) required that the offender be a civil servant or an administrator of funds belonging to a public institution who had taken advantage of his or her position in committing the offence.
As to the fact that the applicant's sentence of imprisonment was increased from 18 months to five years as a result of the finding of the aggravating circumstance, the Government pointed out that, under Spanish law, the Supreme Court's sentencing powers are limited only by the maximum penalty requested by the prosecutor (see paragraph 22 above), which was 15 years in the present case.
30. The Court notes that from the outset the investigating judge characterised the facts as established by him as falling within the definition of the offence of embezzlement of public funds (see paragraph 8 above). This legal classification was endorsed by the public prosecutor and the private prosecutor acting on behalf of the hospital, and they both maintained it throughout the proceedings (see paragraphs 8 and 10 above). In Spanish law, the offence of embezzlement of public funds requires that the offender be either a civil servant or an administrator of funds in a public institution, that he should have taken advantage of his position in committing the offence and that the sums embezzled be "public funds" (see paragraphs 15 and 16 above).
31. It further notes that the applicant never disputed the fact that, in his capacity as head administrator of a Barcelona public hospital, he fell within the category of those "entrusted ... with funds belonging to the provincial or municipal authorities or to educational establishments or charitable organisations", or to that of administrators or depositories of funds deposited by a public authority (Article 399 of the Criminal Code - see paragraph 16 above). In fact, the file of the case shows that this was common ground between the parties (see paragraphs 9 and 11 above). In that capacity, the applicant was clearly occupying a position of a public nature.
Neither the Audiencia Provincial nor the Supreme Court characterised the sums embezzled as "public funds". Both applied the more general offence of simple embezzlement. However, whereas the Audiencia Provincial found that no aggravating circumstance of a general character applied in this case (see paragraph 9 above), the Supreme Court considered that the fact - as established by the Audiencia Provincial and uncontested by the applicant - that Mr de Salvador Torres had taken advantage of his position as head administrator of a public institution aggravated the offence. In the exercise of its powers (see paragraphs 22 and 23 above), the Supreme Court imposed a sentence which, though heavier than that of the Audiencia Provincial, was well below that requested by the prosecutors at the outset and maintained throughtout the proceedings (see paragraphs 8 and 10 above).
32. The Court observes that unlike Articles 394 and 399 of the Criminal Code, Article 10 § 10 requires only that the offender should have taken advantage of the "public nature of his position" (carácter público). It is evident that the Supreme Court, in finding that there was an aggravating circumstance, was referring to this factor (see paragraph 12 above and, mutatis mutandis, the Gea Catalán v. Spain judgment of 10 February 1995, Series A no. 309, p. 11, § 29).
33. In sum, as expressed by the Constitutional Court in its decision of 20 July 1992 (see paragraph 13 above), the public nature of the applicant's position was an element intrinsic to the original accusation of embezzlement of public funds and hence known to the applicant from the very outset of the proceedings. He must accordingly be considered to have been aware of the possibility that the courts - that is, the Audiencia Provincial and the Supreme Court - would find that this underlying factual element could, in the less severe context of simple embezzlement, constitute an aggravating circumstance for the purpose of determining the sentence.
Therefore, the Court finds no infringement of the applicant's right under Article 6 § 3 (a) to be informed of the nature and cause of the accusation against him.


Article 24 of the Constitution: "1. Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests and in no circumstances may there be any denial of defence rights. 2. Likewise, everyone has the right ... to be informed of the charge against him, to have a ... trial ... attended by all the safeguards, to adduce the evidence relevant to his defence, ....

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