Gueorguiev v Spain, UN Human Rights Committee (2005) (excerpts)

Gueorguiev v Spain, UN Human Rights Committee Communication 1386/2005 (excerpts)

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6.3 The Committee further notes the State party's claims that domestic remedies have not been exhausted since the application for amparo was not submitted before the deadline established by law. It takes note also of the author's allegations with respect to supposed irregularities in the appointment of his attorney and legal representative and in the notification of the Supreme Court's decision, which he cites as the reasons that he was unable to meet the deadline established by law to challenge the decision through the remedy of amparo. Likewise, the author claims that this remedy would, in any case, have been unsuccessful, given the Constitutional Court's systematic dismissal of applications for amparo that are based on the right to a second criminal hearing. The Committee refers to its case law, in which it has repeatedly held that the exhaustion rule applies only to remedies that have a reasonable chance of success. [FN5] The remedy of amparo had no chance of success with respect to the alleged violation of article 14, paragraph 5, of the Covenant, and the Committee therefore takes the view that domestic remedies have been exhausted with respect to this part of the communication. As to the complaints based on article 14, paragraphs 3 (b) and 3 (e), of the Covenant, the Committee notes that the State party has not challenged the alleged irregularities mentioned by the author with respect to the appointment of his legal representatives and the failure to notify him of the ruling in cassation, which the author claims justified the late submission of his application for amparo. The State party has confined itself to stating that these matters do not fall within its remit. The Committee takes the view that the State has an obligation to ensure that any person accused of a crime can exercise the right to a defence and the right of appeal, and regrets that the State party offered no reasonable explanation for the procedural irregularities described. Consequently, the Committee takes the view that domestic remedies have also been exhausted with respect to this part of the communication.