Application no.8133/14
against Portugal

The European Court of Human Rights (Fourth Section), sitting on 8 January 2019 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 11 February 2014,

Having deliberated, decides as follows:


1.  The applicant, Mr José Miguel Fischer Rodrigues Cruz da Costa, is a Portuguese national, who was born in 1984 and is detained in Braga.

The circumstances of the case

2.  The facts of the case, as submitted by the applicant, may be summarised as follows.

3.  On 11 July 2011 the investigating judge of the Braga Criminal Court indicted (despacho de pronúncia) the applicant for the crime of computer fraud and committed him for trial.

4.  At a hearing on 31 July 2012, in accordance with the relevant provisions of the Code of Criminal Procedure, the Braga Court issued a decision giving the applicant notice of a change to the facts on which he had been indicted.

5.  On 14 August 2012 the applicant lodged an application challenging the previous decision.

6.  On 17 August 2012 the Braga Court dismissed the applicant’s application and adopted a judgment convicting the applicant of computer fraud and sentencing him to six years’ imprisonment.

7.  On 28 September 2012 the applicant brought an appeal against both the dismissal of his application and his conviction.

8.  On 22 April 2013 the Court of Appeal of Guimarães upheld the applicant’s conviction. Regarding the dismissal of the applicant’s application challenging the change to the facts, the court considered that the applicable legal provisions imposed a twenty-day time-limit for an appeal to be lodged. Accordingly, that court declared that part of the appeal inadmissible as it was time-barred.

9.  A constitutional appeal lodged by the applicant was declared inadmissible on 19 November 2013 on the grounds that he had not complied with the formal requirement to raise an argument of unconstitutionality in respect of any legal provision. Instead, the applicant had challenged the judicial decision convicting him.


10.  Relying on Article 6 §§ 1 and 3 b) and Article 13 of the Convention and on Articles 2 and 3 of Protocol No. 7, the applicant complained of the unfairness of the proceedings. He alleged in particular that he had not been able to challenge the dismissal of his request regarding the change to the facts owing to the time-limit for the appeal.


11.  The applicant submitted that the proceedings leading to his conviction had been unfair and, in particular, that part of the appeal court’s reasoning had been taken from another unfinished criminal case. He further complained about the finding of inadmissibility of the appeal on the change to the facts, rendered by the Court of Appeal of Guimarães (see paragraph 8 above).

The applicant invoked Article 6 §§ 1 and 3 b) and Article 13 of the Convention as well as Articles 2 and 3 of Protocol No. 7.

12.  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 and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018). Therefore, regarding the facts and the complaints made, the Court considers that the application falls to be examined solely under 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 … by [a] … tribunal …”

13.  The Court recalls that in assessing whether an applicant has complied with Article 35 § 1 of the Convention, it is important to bear in mind that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated (Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016).

14.  In the instant case, the constitutional appeal did not have any prospect of success since the applicant had not complied with one of the formal requirements of such an appeal (see paragraph 9 above). For that reason, the Constitutional Court was not able to address the applicant’s complaints before it. The constitutional appeal was thus not an adequate and effective remedy for the purpose of the instant application.

15.  Accordingly, the Constitutional Court decision of 19 November 2013 (see paragraph 9 above) cannot be taken into account for the calculation of the six-month period (see, mutatis mutandis, Traina v. Portugal (dec.), no. 59431/11, §§ 29‑30, 21 March 2017).

16.  The final domestic decision within the meaning of Article 35 § 1 of the Convention is therefore the judgment of the Court of Appeal of Guimarães delivered on 22 April 2013 (see paragraph 8 above), more than six months before the date on which the application was submitted to the Court (11 February 2014). The Court therefore considers that the application was lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 31 January 2019.

Andrea Tamietti                                                            Egidijus Kūris
Deputy Registrar                                                                President

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