FOURTH SECTION
\nDECISION<\/p>\n
Application no. 15729\/15
\nJos\u00e9 Ant\u00f3nio FLOR LEMUS
\nagainst Portugal<\/p>\n
The European Court of Human Rights (Fourth Section), sitting on 25\u00a0September 2018 as a Committee composed of:<\/p>\n
Egidijus K\u016bris, President,
\nPaulo Pinto de Albuquerque,
\nIulia Antoanella Motoc, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 20 March 2015,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Jos\u00e9 Ant\u00f3nio 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.<\/p>\n The circumstances of the case<\/strong><\/p>\n 2.\u00a0\u00a0The facts of the case, as submitted by the applicant, may be summarised as follows.<\/p>\n 3.\u00a0\u00a0On 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.<\/p>\n 4.\u00a0\u00a0On 23 April 2013 the applicant was present at the first trial hearing in the Court of Figueira da Foz.<\/p>\n 5.\u00a0\u00a0At the following trial hearing the applicant\u2019s defence lawyer requested that the applicant be tried in absentia because he had been diagnosed with cancer. The request was granted by the court.<\/p>\n 6.\u00a0\u00a0On 25 July 2013 the Court of Figueira da Foz delivered its judgment in the presence of the applicant\u2019s defence lawyer, convicting the applicant of embezzlement of the social security system.<\/p>\n 7.\u00a0\u00a0On 10 October 2013 the applicant lodged an appeal against his conviction before the Coimbra Court of Appeal.<\/p>\n 8.\u00a0\u00a0On 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.<\/p>\n 9.\u00a0\u00a0On 22 October 2014 the Coimbra Court of Appeal rejected the applicant\u2019s appeal on the grounds that it was time-barred.<\/p>\n 10.\u00a0\u00a0On a non-specified date the Supreme Court accepted to reopen the criminal proceedings and refer the case to the Pombal Criminal Court.<\/p>\n 11.\u00a0\u00a0The applicant was subjected to a new trial, in which he was heard and acquitted by the Pombal Criminal Court by a judgment of 7\u00a0March 2017, on the grounds that he had not committed the offence with which he had been charged.<\/p>\n COMPLAINTS<\/strong><\/p>\n 12.\u00a0\u00a0The applicant complained, under Article 6 \u00a7 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\u2019s judgment and had therefore been unable to appeal against his conviction within the time-limit established by law. Under Article 6 \u00a7 1 of the Convention he also complained about the length of the criminal proceedings brought against him.<\/p>\n THE LAW<\/strong><\/p>\n A. Complaint under Article 6 \u00a7 1 of the Convention as to the length of the proceedings<\/strong><\/p>\n 13.\u00a0\u00a0The applicant complained that the length of the criminal proceedings brought against him had been incompatible with the \u201creasonable time\u201d requirement laid down in Article 6 \u00a7 1 of the Convention.<\/p>\n In so far as relevant, this provision reads as follows:<\/p>\n \u201cIn the determination of … any criminal charge against him, everyone is entitled to a fair … hearing within a reasonable time … by [a] … tribunal …\u201d<\/p>\n 14.\u00a0\u00a0The 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, \u00a7\u00a066, Reports of Judgments and Decisions 1996\u2011IV, and Vu\u010dkovi\u0107 and Others v.\u00a0Serbia [GC], no. 17153\/11, \u00a7 71, 25 March 2014).<\/p>\n 15.\u00a0\u00a0The 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, \u00a7\u00a7 51-57, 10 June 2008, andValada Matos das Neves v. Portugal, no. 73798\/13, \u00a7 106, 29\u00a0October 2015).<\/p>\n 16.\u00a0\u00a0Nevertheless, in the case of Valada Matos das Neves, the Court considered that the domestic courts\u2019 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\u2019 case-law following the Supreme Administrative Court\u2019s 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 \u00a7 1 of the Convention.<\/p>\n 17.\u00a0\u00a0The Court also found it reasonable to presume that six months after delivery of the judgment \u2013 that is, from 27 May 2014 \u2013 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 \u00a7 1 of the Convention (see Valada Matos das Neves, cited above, \u00a7\u00a7\u00a0102-07).<\/p>\n 18.\u00a0\u00a0The 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 \u00a7 1 of the Convention. However, the applicant did not lodge such an action.<\/p>\n 19.\u00a0\u00a0In 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\u00a035 \u00a7\u00a01 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 Tom\u00e9 Mota v. Portugal (dec.), no. 32082\/96, 2\u00a0December 1999).<\/p>\n 20.\u00a0\u00a0Accordingly, the Court considers that the applicant has failed to exhaust the domestic remedies available to him and that the complaint under Article 6 \u00a7 1 of the Convention concerning the length of the proceedings must be rejected pursuant to Article 35 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n B. Complaint concerning the lack of access to a court<\/strong><\/p>\n 21.\u00a0\u00a0Under Article 6 \u00a7 1 of the Convention and Article 2 of Protocol no.\u00a07 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.<\/p>\n