issued by the Registrar of the Court

ECHR 067 (2013)

05.03.2013

Bookseller convicted of “justifying genocide” should have been

notified of the amended charge against him in order to prepare
his defence
In today’s Chamber judgment in the case of Varela Geis v. Spain (application
no. 61005/09), which is not final,1 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

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month
period following its delivery, any party may request that the case be referred to the Grand Chamber of the
Court. If such a request is made, a panel of five judges considers whether the case deserves further
examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral
request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for
supervision of its execution. Further information about the execution process can be found here:
www.coe.int/t/dghl/monitoring/execution
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”

2
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 euros (EUR) in respect of
non-pecuniary damage and EUR 5,000 in respect of costs and expenses.

The judgment is available only in French.

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The European Court of Human Rights was set up in Strasbourg by the Council of
Europe Member States in 1959 to deal with alleged violations of the 1950 European
Convention on Human Rights.