Last Updated on November 1, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 15729/15
José António FLOR LEMUS
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 25 September 2018 as a Committee composed of:
Egidijus Kūris, President,
Paulo Pinto de Albuquerque,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 20 March 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr José António Flor Lemus, is a Portuguese national who was born in 1949 and lives in Lisbon. He was represented before the Court by Mr J. Malafaia, a lawyer practising in Figueira da Foz.
The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 26 February 2010 the applicant was charged with embezzlement of the social security system with regard to events that had occurred in 2006 and 2007.
4. On 23 April 2013 the applicant was present at the first trial hearing in the Court of Figueira da Foz.
5. At the following trial hearing the applicant’s defence lawyer requested that the applicant be tried in absentia because he had been diagnosed with cancer. The request was granted by the court.
6. On 25 July 2013 the Court of Figueira da Foz delivered its judgment in the presence of the applicant’s defence lawyer, convicting the applicant of embezzlement of the social security system.
7. On 10 October 2013 the applicant lodged an appeal against his conviction before the Coimbra Court of Appeal.
8. On the same date the applicant also requested that he be personally notified of his conviction and, as a result, be allowed a new term in which to appeal. That request was dismissed by decision of the Court of Figueira da Foz on 13 October 2013.
9. On 22 October 2014 the Coimbra Court of Appeal rejected the applicant’s appeal on the grounds that it was time-barred.
10. On a non-specified date the Supreme Court accepted to reopen the criminal proceedings and refer the case to the Pombal Criminal Court.
11. The applicant was subjected to a new trial, in which he was heard and acquitted by the Pombal Criminal Court by a judgment of 7 March 2017, on the grounds that he had not committed the offence with which he had been charged.
COMPLAINTS
12. The applicant complained, under Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 to the Convention, of lack of access to a court. He alleged that he had not been notified in person of the first-instance court’s judgment and had therefore been unable to appeal against his conviction within the time-limit established by law. Under Article 6 § 1 of the Convention he also complained about the length of the criminal proceedings brought against him.
THE LAW
A. Complaint under Article 6 § 1 of the Convention as to the length of the proceedings
13. The applicant complained that the length of the criminal proceedings brought against him had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
In so far as relevant, this provision reads as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing within a reasonable time … by [a] … tribunal …”
14. The Court reiterates that the obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV, and Vučković and Others v. Serbia [GC], no. 17153/11, § 71, 25 March 2014).
15. The Court notes that prior to 27 May 2014, Portuguese practice did not provide for an effective legal remedy allowing a claimant to obtain compensation for excessively lengthy proceedings (see Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, §§ 51-57, 10 June 2008, andValada Matos das Neves v. Portugal, no. 73798/13, § 106, 29 October 2015).
16. Nevertheless, in the case of Valada Matos das Neves, the Court considered that the domestic courts’ practice had evolved significantly over the past few years as regards the assessment of actions to establish non-contractual liability for failing to comply with the reasonable time requirement. It further considered that the change had become consolidated within the domestic courts’ case-law following the Supreme Administrative Court’s judgment of 27 November 2013, to the extent that the remedy had acquired the requisite degree of legal certainty to enable and oblige applicants to use it for the purposes of Article 35 § 1 of the Convention.
17. The Court also found it reasonable to presume that six months after delivery of the judgment – that is, from 27 May 2014 – the judgment had gained publicity at domestic level, particularly in legal circles. Consequently, as from that date, applicants were required to use the remedy in question for the purposes of Article 35 § 1 of the Convention (see Valada Matos das Neves, cited above, §§ 102-07).
18. The application in the present case was lodged on 20 March 2015, by which date the action to establish non-contractual liability was already an effective remedy for the purposes of Article 35 § 1 of the Convention. However, the applicant did not lodge such an action.
19. In addition, the applicant did not apply for an order to expedite the criminal proceedings pursuant to Articles 108 and 109 of the Code of Criminal Procedure, which constitutes an effective remedy under Article 35 § 1 of the Convention, enabling a person to request the judge to take the necessary steps, such as fixing a date for the hearing or closing the judicial investigation (see Tomé Mota v. Portugal (dec.), no. 32082/96, 2 December 1999).
20. Accordingly, the Court considers that the applicant has failed to exhaust the domestic remedies available to him and that the complaint under Article 6 § 1 of the Convention concerning the length of the proceedings must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
B. Complaint concerning the lack of access to a court
21. Under Article 6 § 1 of the Convention and Article 2 of Protocol no. 7 to the Convention, the applicant complained that he had been unable to appeal against the judgment of 25 July 2013 delivered by the Figueira da Foz Court (see paragraph 6 above). He alleged that he had not been personally notified by that court.
22. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case and it does not consider itself bound by the characterisation given by the applicant (see Radomilja v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114-115 and 126, ECHR 2018). In the circumstances of the present case, the Court considers that the applicant’s complaint should be analysed solely under Article 6 § 1 of the Convention, regarding the right of access to a court.
23. The Court reiterates that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention, to which access to a court is an implicit requirement, in proceedings in which he was acquitted or which were discontinued (see Osmanov and Husseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003; and Witkowski v. Poland (dec.), no.53804/00, 4 February 2003).
24. Furthermore, the Court reiterates that in order to be able to claim to be a victim of a violation of the Convention, an applicant must be able to show that he or she has been directly affected by the impugned measure (see JózefOleksyv. Poland (dec.), no. 1379/06, 16 June 2009).
25. In the present case the applicant was convicted for embezzlement of the social security system by a judgment of 25 July 2013 (see paragraph 6 above). On 13 October 2013 the applicant lodged an appeal against his conviction (see paragraph 7 above), which was rejected by the Coimbra Court of Appeal by decision of 22 October 2014, on the grounds that the appeal was time-barred (see paragraph 9 above). Following the reopening of the criminal proceedings (recursoextraordinário de revisão), the applicant’s conviction was quashed by a judgment of the Pombal Criminal Court delivered on 7 March 2017 (see paragraph 11 above).
26. In view of the above, the applicant has not been sanctioned or convicted for any criminal offence. Moreover, the Court notes that the applicant in the present case does not appear to have argued that he was still affected by the criminal proceedings following the acquittal judgment of 7 March 2017, apart from the complaint concerning the length of the criminal proceedings that has already been analysed above.
27. The Court considers that any defects which may have existed at the time of the applicant’s trial, including any lack of access to the court, must be considered to have been rectified by the discontinuation of the criminal proceedings. Thus, the applicant can no longer claim to be a victim of the alleged violation of the Convention, as required by Article 34 of the Convention (see, mutatis mutandis, JózefOleksy, cited above).
28. Accordingly, this complaint is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 October 2018.
Andrea Tamietti EgidijusKūris
Deputy Registrar President
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