of the
European Convention on Human Rights
This is an edited version of these points. It differs from the original submitted to the Constitutional Court mainly in the omission of the names of five witnesses, and their substitution with - Mr A, Mr B, his wife Mrs B, Ms C, and Mr D.
A/000Re: 'a public hearing within a reasonable time'.
1/000The denuncia against me was issued in October of 2011, the public hearing did not take place until October of 2012.
2/000At the end of the hearing the Judge informed me that the judgement would be issued within 5 days, and that I would know the outcome at that time. In fact he did not sign-off the case until eleven and a half weeks later. With the delay for translation I was not informed of the outcome by the authorities until the following April - almost six months later.
3/000With the time taken for the appeal, this judicial process has now taken two and a half years. This does not seem to me to constitute 'a reasonable time'.
B/000Re: 'an independent and impartial tribunal'
1/000I raised a number of issues during these quasi-legal proceedings, e.g.;
0000a) the fact that there was no case to answer because no harm has been done;
0000b) the illegal conduct of the Alcalde in failing to fulfil his legal obligations re the removal of the plaque;
0000c) the passive intimidation of those witnesses who rely on the Council for employment. (In reference to which it is worth recording that the witness Mr A stated that he had been unemployed for some considerable time. Shortly after giving his 'evidence' he found work - with the Council. His 'evidence' consisted of a hearsay repetition of the 'evidence' of the Councillor José Antonio Fernández Cancio);
0000d) the actual physical intimidation of witnesses. Specifically the physical assault committed by the Councillor José Antonio Fernández Cancio on the witness Mr B on the night of December 10th 2011 in Negueira de Muñiz, that is to say between the date (October 2011) when I nominated Mr B and his wife Mrs B as witnesses to the contract agreement between myself and the Councillor José Antonio Fernández Cancio and the date when they were obliged to give evidence (February 2012);
0000e) the spurious value attributed to the illegal plaque.
1a/000None of these issues is addressed in either the Fonsagrada or the Lugo 'judgements'.
2/000In the Lugo 'judgement' the Judge invents and then disposes of a false defence, specifically that I had claimed not to have understood what was said to me by the Alcalde and the Councillor. I made no such claim.
3/000In both Fonsagrada and Lugo 'judgements' it is stated as a 'Proven Fact' that I 'did not have permission' to remove the illegal Fascist plaque. This is certainly not a proven fact, but is no more than an assumption. In fact I had concluded a contract the preceding day with the Councillor José Antonio Fernández Cancio, having made an offer to remove the plaque free of charge. An offer that was accepted in front of witnesses, as cited in para B/ 1/ d) above.
4/000In both Fonsagrada and Lugo 'judgements' a value is attributed to the illegal Fascist plaque. The existence of a purely nominal value on the Council's books reflects the failure of the Council to fulfil its legal obligations. Such a purely nominal and illegal value cannot legitimately be translated into an actual and legal value.
5/000The Lugo 'judgement' states that it is not possible to re-examine the evidence, in which case the intention of an appeal is effectively negated at the outset of the procedure.
6/000The Lugo 'judgement' states that in light of the Fonsagrada Judging Authority's 'privileged position' it is not possible to overturn their decisions, in which case the intention of an appeal is effectively negated at the outset of the procedure.
7/000The Lugo 'judgement' states that the Fonsagrada Judging Authority's decision making can only be examined if it appears to be 'incoherent, arbitrary, irrational, absurd or illogical'. For a judge in a Court of Law to describe the intention of the Law as 'vandalism' is perverse, and clearly subverts the Law of Historical Memory, and such a stance could legitimately be described as incoherent, arbitrary, irrational, absurd and illogical.
8/000It is evident that in both the Fonsagrada and Lugo 'judgements' there is no understanding of the nature of justice, logic or democracy, but solely a determination to impose the ruling 'principle' of a kangaroo court "You have been accused by someone in authority, and therefore you are guilty."
9/000I was not informed of the date of the appeal hearing, and was given no opportunity to attend.
C/000Re: 'shall be presumed innocent until proved guilty'
1/000The trial was scheduled for September 2012, but was cancelled due to incompetence on the part of the authorities. Having attended as required I took the opportunity to raise the issue of there being 'no case to answer' with the Judge, who speaks some English.
1a/000Either he did not understand the concept, or chose not to understand it, but responded to my observation that there was no case to answer by saying that I did not have to attend the trial if I did not want to. He then went on to say that he could understand that I would not want to be present when my punishment was announced. By making this statement he clearly indicated that the concept of presumed innocent did not apply.
2/000I made another attempt to establish that there was no case to answer, but he continued with his theme saying that my punishment would be the same whether I attended or not, thus again clearly indicating that the concept of presumed innocent did not apply.
3/000The fact that prior to the trial the Judge had decided that I was to be punished, and that any evidence I might give could not influence the outcome makes a mockery of the concept of a trial. The 'judicial' process to which I was subjected can only be interpreted as a kangaroo court whose governing 'principle' was "You have been accused by someone in authority, and therefore you are guilty." - all the rest was mere 'theatre'.
4/000The court appointed Abogado who 'represented' me when I was interviewed by the Judge in October 2011 was selected for me without my knowledge, and without explanation - I was simply told that he had been appointed to defend me.
4a/000I asked the court appointed Abogado if there was a clause in the Law of Historical Memory which specifically forbade a private individual from removing an illegal Fascist plaque. He could not answer this, but instead informed me that I had had no permission to remove the plaque. This response was inadequate - in terms of not knowing the law, and incorrect for I did have 'permission', or more precisely a contract to remove the plaque.
4b/000I was puzzled by the Abogado's assertion, specifically on what basis, without asking me any questions, could he know whether or not I had permission. On the day of the cancelled trial in September 2012 I discovered the answer when I found out that he was a personal friend of the Alcalde. I believe this fact should have been enough of a conflict of interest for him to step aside. In any event it was clear that the concept of presumed innocent did not apply as far as the court appointed Abogado was concerned.
4c/000A further point re. the court appointed Abogado; during the interview with the Judge in October 2011 I identified two witnesses to the contract agreement to remove the plaque entered into between me and the Councillor José Antonio Fernández Cancio on Wednesday 13th July 2011. In addition I stated that later that same day another four witnesses had been present and would probably have overheard our conversation when we agreed the time José Antonio Fernández Cancio would bring the power hammer which I was to use to remove the plaque to my home.
I stated that I did not know the names of any of those four witnesses, but could find out, mentioning that one had stood for the BNG in the elections. The Judge said not to bother. There was a brief exchange between the Judge and the court appointed advocate without reference to me.
It became apparent to me many months later that this was the point at which my witness statement was falsified; the Alcalde has problems dealing with the main candidate for the BNG, Ms C, a fact that would be known to a personal friend of the Alcalde, and she is incorrectly identified as the witness I was referring to in my statement (and was called as a 'witness'). The witness I was referring to was Mr D - he was never called.
D/000Re: 'to be informed promptly, in a language which he understands and in detail'
1/000To date (April 2014) I have been given only two documents in English, namely the two 'judgements'.
2/000I was given a photocopy of the denuncia - not in English, a year after it was issued.
3/000The Councillor José Antonio Fernández Cancio with whom I made a contract agreement to remove the illegal Fascist plaque claimed that I had deliberately misled him as to the intended use of the power hammer which he brought to my house for the purpose of removing the plaque. This false accusation was not made known to me until the trial itself.
3a/000During the interview with the Judge in October 2011 I saw the witness statement of José Antonio Fernández Cancio on the Judge's desk. Although I could not understand it I was scanning it for familiar words. When the Judge saw this he moved it out of my line of sight. Far from informing me promptly and in detail, he was deliberately withholding information. I have never been given a copy of this document.
4/000Similarly I was looking at another document in view on his desk which appeared to be a quote for an exact replacement of the illegal Fascist plaque. Once again he removed the document from my line of sight when he noticed I was scanning it. I have never been given a copy of this document.
4a/000I believe the figure given for the replacement plaque was in excess of 600 euros, certainly on the day of the cancelled trial (September 2012) the Judge made a particular point of telling me the value of the plaque was now less than 400 euros - the importance of this, he told me was that the trial could now take place in Fonsagrada rather than Lugo.
4b/000In December 2013 I was told by a local journalist that the Alcalde has stated he intends to erect a new plaque. This new plaque would be illegal on two grounds - it would bear the name of the murderous Fascist dictator Franco, and the name of the Fascist era Alcalde. This information would seem to substantiate the idea that the quote cited in para D/ 4) was for a straight replacement plaque, it also raises issues about the political motivation of the Alcalde, including the issuing of the unjustified denuncia against me.
5/000My understanding of a valid legal procedure is that there should be a full disclosure of documentation, and in a fully intelligible form; to repeat, to date I have only two documents in English, namely the two 'judgements'.
E/000Re: 'adequate time and facilities'
1/000While time was certainly adequate - indeed excessive, it was not made known to me that I had a right to facilities to aid the preparation of a defence.
2/000I repeatedly stated to the various court official that I came in contact with that I needed to have documentation in English. Such documentation was not forthcoming, except as follows
2a/000During the trial I stated that it was the responsibility of the Department of Justice to supply paperwork in the language of the accused. The Judge objected to this statement. I repeated it forcefully, and pointed out that had such paperwork been supplied I would have been aware of the falsification of my witness statement soon after it happened.
Consequent on this insistence the 'judgement' was translated into English.
3/000The 'judgement' from the Lugo appeal was not supplied in English until an additional request was made for what should have been done as of right.
4/000On one occasion a court worker in another department at Fonsagrada translated an administrative document for me. She did not speak English, but achieved an approximate translation by using a computer based translator to translate Castillano into Gallego, then Gallego to English.
5/000For the appeal I was represented by an abogado of my own choosing. I asked him for a translation of the appeal submission. He told me I would have to take it to the court and ask them to get the translation done. At the court I met the Judge and asked him for the document to be translated, He refused saying they would only translate documents they themselves produced. I still do not know the precise contents of the appeal document.
F/000Re: 'Legal assistance of his own choosing'
1/000I had no say in the choosing of the court appointed Abogado.
2/000His two interventions - one an entirely irrelevant question to the Judge (so irrelevant that I cannot remember it), the other his part in the falsification of my witness statement, were clearly of no value to me.
3/000At no point prior to the trial was I informed about my right to legal assistance of my own choosing. Consequently I represented myself at the trial.
G/000Re: 'to obtain the attendance and examination of witnesses on his behalf under the same conditions'
1/000The falsification of my witness statement - an avoidable error committed by the court appointed Abogado and the Judge, led to a non-witness being called. The actual witness was never called.
2/000All of the witnesses to the contract agreement, and subsequent conversation rely on the Council for work. The passive intimidation of witnesses consequent upon this fact makes it highly unlikely that the same conditions can exist (and clearly did not).
3/000All of the witnesses to the assault made by the Councillor José Antonio Fernández Cancio (on the witness Mr B on the night of December 10th 2011) who are known to me are reliant on the Council for employment. Very clearly those witnesses are aware of the actual physical intimidation, and consequently cannot give evidence under the same conditions.
H/000Re: 'Fair trial?'
1/000I am aware that it is an offence for an abogado - including a public prosecutor to put forward a witness who may lie in giving their evidence. Necessarily therefore a process of 'due diligence' must be performed by such an abogado.
I am quite prepared to believe that when I cited the assault made by the Councillor José Antonio Fernández Cancio (on the witness Mr B on the night of December 10th 2011) in court this information was new to the public prosecutor.
No meaningful form of due diligence by the Public Prosecutor was performed.
At no point was it explained to José Antonio Fernández Cancio that to lie in a court of law is a criminal offence, nor was he given time to reconsider his evidence.
In addition to this lack of effective due diligence on the part of the Public Prosecutor, the Judge took no steps to oblige the Public Prosecutor to conduct meaningful due diligence.
2/000In the Lugo 'judgement' it is stated that the 'judgement' of the Fonsagrada Judge is not illogical, on the contrary much of it is the opposite of logic, or logic turned on its head.
There is one significant area where a judge who was capable of judging could have used logic in pursuance of the truth.
2a/000The Lugo 'judgement' specifically states that the Fonsagrada Judge did not believe me. In regards to which here is the logic that a real judge might have used;
0001) 'If the accused has invented his story, why then has he nominated two witnesses to something which did not happen?'
0002) 'Such witnesses would be guaranteed to contradict his invented story.'
0003) 'Do they contradict his story?'
0004) 'No, they do not. They say they did not understand what was being said.'
0005) 'Could these witnesses have any vested interest in manipulating their testimony?'
0006) 'They rely on the Council for employment.'
2b/000In light of the evidence I gave in Court re the assault, in light of the clear question raised by the logic cited above, in light of the comparative gravity of physical assault, lying in a court of law, and (effectively) conspiracy to pervert the course of justice - compared to the inconsequential and imaginary 'offence' of removing an illegal Fascist plaque, it really is beholden on anyone claiming to be a judge to take these issues seriously and investigate them in a meaningful way.
2c/000The physical assault committed by the Councillor José Antonio Fernández Cancio (on the witness Mr B on the night of December 10th 2011) is common knowledge in Negueira de Muñiz, as is the fact that José Antonio Fernández Cancio lied in giving his 'evidence', that Mr A repeated that 'evidence' knowing it to be false, and that Mr B and his wife Mrs B gave false 'evidence' by claiming not to have understood what was being said, when in fact they were full participants in the discussion that led to the contract agreement.*
3/000It is however apparent that in a kangaroo court whose governing 'principle' is "You have been accused by someone in authority, and therefore you are guilty." - all the rest is of no importance.
4/000When I became aware of the falsification of my witness statement I brought it to the attention of the Judge and the court appointed Abogado. I received the same response from both of them - a shrug of the shoulders, and a 'Don't worry; it's not important.'
And of course they are right; in a kangaroo court whose governing 'principle' is "You have been accused by someone in authority, and therefore you are guilty." - and where all the rest is mere 'theatre' the calling of the wrong witness is of no importance at all.
* On a personal note I must record at this time that I feel no animosity towards Mr B and his wife Mrs B, nor towards Mr A. I feel marginal animosity towards José Antonio Fernández Cancio. I have great sympathy for the first two named, some sympathy for the third, and little sympathy but some understanding for the Councillor.
By contrast I have complete contempt for the Alcalde (José Manuel Braña Pereda) and the two 'Judges' (Eladio Prieto Bellas of Fonsagrada & José-Manuel Varela Prada of Lugo), and considerable contempt for the court appointed Abogado (José M. López Alvarez) and the Public Prosecutor - none of whom come close to being up to the jobs they are employed to do.
Cliff Torrents Colman, April 2014.