CCPR/C/112/D/2105/2011
2.2
Mr. S.S.F. and Mr. E.J.S.E. were accused of fraud by the companies Hermanga S.A.
and Fricuenca S.A., in accordance with articles 528 and 529 (para. 7) of the amended
Criminal Code of 1973. On 4 February and 9 September 2004, Murcia Provincial Court
acquitted the authors of fraud in the proceedings arising from the complaints brought by
Hermanga S.A. and Fricuenca S.A., respectively. The Provincial Court found that the
established facts did not constitute fraud, insofar as it had not been proved that the actions
of the main defendant, Mr. S.S.F., were intended to deceive the companies Hermanga S.A.
and Fricuenca S.A. by feigning solvency so that they would supply him with goods; that the
company’s financial difficulties were due to the unlawful removal of their goods by another
company, an incident beyond the authors’ control; and that it could not be concluded that a
crime had been committed on the sole basis of the losses incurred by the complainants.
Moreover, given his young age and student status, the involvement of Mr. E.J.S.E. was of a
merely formal nature, since, although he was listed as a company director, he visited the
premises only sporadically in the presence of his father, who showed him which documents
to sign.
2.3
Meanwhile, the companies Cárnicas Poveda S.A. and Ganadera del Segura S.L.
brought a complaint against the authors and other persons for the continuing offences of
fraud and forgery of an official document, under articles 248, 249, 250 (paras. 6 and 7) and
74 of the Criminal Code of 1995, and articles 303, 302 (paras. 1, 4 and 9) and 69 bis of the
amended Criminal Code of 1973. On 30 June 2008, the Provincial Court ruled that the
established facts constituted the continuing offence of fraud with aggravating circumstances
and sentenced the authors to 3 years and 6 months’ imprisonment, under articles 248, 249,
250 (para. 1, subparas. 6 and 7) and 74 of the Criminal Code of 1995. 1 Moreover, the
Provincial Court held that its judgements of 4 February and 9 September 2004 did not
prevent it from conducting a new trial, insofar as it involved allegations brought by
different natural and legal persons who had not participated in the earlier trial, in addition to
different facts.
2.4
On 30 October 2008, the authors appealed against their conviction through the
remedy of cassation before the Supreme Court. On 2 December 2008, Mr. E.J.S.E. alleged
a violation of the right to an effective legal remedy and claimed that the existence of the
constituent elements of fraud had not been established. On 3 December 2008, Mr. S.S.F.
and Mr. S.S.E. argued, inter alia, that the Provincial Court had acquitted Mr. S.S.F. and Mr.
E.J.S.E. of criminal liability in relation to the company’s commercial activities in its
judgements of 4 February and 9 September 2004; that the ruling did not give a clear and
precise indication of what the established facts were considered to be; that their defence
team’s offer to submit documentary evidence to prove that the company was solvent had
been rejected; that the ruling against the authors was insufficiently substantiated; and that
the existence of the elements of the offence of fraud could not be established. Subsidiarily,
the authors maintained that the aggravating factors under article 250, paragraph 1,
subparagraphs 6 and 7, of the Criminal Code had been unduly applied; that the
classification of the penalty was inappropriate, given that undue delays in the proceedings
constitute a mitigating factor; and that the Provincial Court had committed an error in its
evaluation of the evidence.
2.5
On 16 October 2009, the Supreme Court rejected the allegations made by Mr.
E.J.S.E. and found the cassation appeal lodged by Mr. S.S.F. and Mr. S.S.E. to be partially
substantiated, extending the favourable outcome to Mr. E.J.S.E. The Supreme Court upheld
1
GE.14-20560
The authors point out that one judge submitted a dissenting opinion, disagreeing with the finding of
aggravation under article 250, paragraph 1, subparagraph 7, of the Criminal Code (Aggravation by
exploitation of business credibility), on the grounds that, in her opinion, it had not been demonstrated
that there was no evidence of any situations or relationships that differed from those generated by
behaviour typical of fraud and would specifically constitute aggravation.
3