Religion – Weltanschauung – Recht [ RWR ]

In today’s Chamber judgment in the case of Varela Geis v. Spain (application no. 61005/09), which is not final, the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 §§ 1 and 3 (a) and (b) (right to a fair trial and rights of the defence) of the European Convention on Human Rights. A bookshop owner who sold publications about the Holocaust complained that he had been convicted on appeal of „disseminating ideas or doctrines justifying acts of genocide“, an offence not corresponding either to the charges against him or to his conviction at first instance.

The Court emphasised the need for anyone facing a criminal charge to be notified when the charge was amended. Persons accused of an offence were entitled to be informed not only of the material facts on which the accusation was based but also of any change in their legal classification, in order to be able to prepare their defence accordingly.

Principal facts

The applicant, Pedro Varela Geis, is a Spanish national who was born in 1957 and lives in Barcelona (Spain). He was the owner and manager of the Europa bookshop in Barcelona which, among other things, sold publications about the Holocaust.

Searches of his home and the bookshop were carried out on 11 December 1996 pursuant to a warrant issued by the Barcelona investigating judge. On the basis of part of the material seized, the public prosecutor’s office sought the applicant’s conviction for the persistent offence of „genocide“, accusing him of denying the existence of the Holocaust, and for the persistent offence of „incitement to racial discrimination“. Apart from a number of books on art, history and mythology, most of the publications on sale in the shop glorified National Socialism and contained incitements to discrimination and hatred against the Jewish community.

On 16 November 1998 Mr Varela Geis was convicted under Article 607 § 2 and Article 510 § 1 of the Criminal Code of the offences of „genocide“ and incitement to discrimination, hatred and violence against groups or associations on racist and anti-Semitic grounds, and received a prison sentence and a fine. He appealed to the Barcelona Audiencia Provincial, which decided on 14 September 2000, with the applicant’s agreement, to seek a preliminary ruling from the Spanish Constitutional Court as to whether his sentence might run counter to freedom of expression, a fundamental right guaranteed by the Constitution. In a judgment of 7 November 2007 the Constitutional Court declared unconstitutional the provision of the Criminal Code concerning genocide denial. As a result, only the dissemination of ideas or doctrines that „justify“ crimes of genocide or seek to restore totalitarian regimes is now punishable by a prison sentence.

In a judgment of 5 March 2008 Mr Varela Geis was acquitted of incitement to racial discrimination and convicted of the offence of „justifying genocide“. The Audiencia Provincial drew a distinction between the mere dissemination of doctrines and the offence of direct incitement to hatred, discrimination and violence; while Mr Varela Geis had undoubtedly carried out activities involving dissemination of the offending doctrines, there were no grounds to conclude that he had directly incited anyone to engage in the above-mentioned forms of criminal behaviour. However, the Audiencia Provincial held that even after all reference to doctrines of denial had been removed from the facts established in the judgment of 16 November 1998, Article 607 § 2 of the Criminal Code was still applicable in the applicant’s case as regards the offence of „justifying genocide“.

The applicant objected that he had been convicted of an offence in respect of which he had been neither charged nor convicted at first instance. He appealed to the Constitutional Court, which declared his appeal inadmissible on 22 April 2009.

Complaints, procedure and composition of the Court

Relying on Article 6 §§ 1 and 3 (a) and (b) (right to a fair trial), the applicant complained that he had been convicted on appeal of an offence not forming part of the indictment or of his conviction at first instance. He also relied on Articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression).

The application was lodged with the European Court of Human Rights on 5 November 2009.

Judgment was given by a Chamber of seven judges, composed as follows:

Josep Casadevall (Andorra), President,

Alvina Gyulumyan (Armenia),
Corneliu Bîrsan (Romania),
Ján Šikuta (Slovakia),
Luis López Guerra (Spain),
Nona Tsotsoria (Georgia),
Valeriu Griţco (the Republic of Moldova),

and also Santiago Quesada, Section Registrar.

Decision of the Court

Article 6 §§ 1 and 3

The Court emphasised the crucial role played by the indictment in the criminal process. The Convention did not impose any special formal requirements as to the manner in which the accused were to be informed of the nature and cause of the accusation against them, but the provision of full, detailed information concerning the charges (both the material facts and their legal classification) was nevertheless an essential prerequisite for ensuring that the proceedings were fair and enabling the accused to prepare their defence.

It had not been established that the applicant had ever been made aware that the Audiencia Provincial might amend the charges against him from „denying“ to „justifying“ genocide, and this eventuality was not mentioned at any stage, either during the trial in the appellate court or when a preliminary ruling on constitutionality was sought.

The Court therefore considered that, in using its undisputed right to reclassify the alleged offence in the case before it, the Audiencia Provincial should have given the applicant the opportunity to exercise his defence rights in good time. That had not happened, as it was only through the judgment on his appeal that Mr Varela Geis had belatedly learnt of the amended charge. The Court concluded that there had been a violation of Article 6 §§ 1 and 3 (a) and (b).

Articles 9 and 10

The Court observed that the applicant’s complaints under Articles 9 and 10 were closely linked to those raised under Article 6. Having regard to its finding of a violation of that Article, the Court considered that it was unnecessary to examine these complaints.

Just satisfaction (Article 41)

The Court held that Spain was to pay Mr Varela Geis 8,000 € in respect of non-pecuniary damage and € 5,000 in respect of costs and expenses.

ECHR Press release 067 (2013) 05/05/2013