CASE OF MOREIRA FERREIRA v. PORTUGAL (No. 2)
Preliminary objection dismissed (Article 35-3-a - Ratione materiae);Remainder inadmissible (Article 35-3-a - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Criminal charge;Fair hearing)
András Sajó;Angelika Nußberger;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Marko Bošnjak;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Paul Mahoney;Paulo Pinto De Albuquerque;Síofra O’Leary;Vincent A. De Gaetano
10. The applicant was born in 1961 and lives in Matosinhos. 11. Following an altercation with other persons, the applicant was prosecuted by the public prosecutor at the Matosinhos District Court for threatening conduct. An expert report was produced during the investigation, stating that the applicant had limited intellectual and cognitive capacities but that she should be held criminally responsible for her acts. 12. In a judgment of 23 March 2007 the Matosinhos District Court dismissed the applicant’s defence of diminished criminal responsibility and sentenced her to 320 day-fines, amounting to a total of 640 euros (EUR), for threatening and insulting conduct, as well as ordering her to pay damages to the victims. 13. On 13 April 2007 the applicant appealed to the Oporto Court of Appeal (“the Court of Appeal”) against the judgment. She repeated that she had been unaware of the unlawfulness of her acts and sought an acknowledgment of her lack of criminal responsibility owing to the psychiatric disorders from which she claimed to suffer. Consequently, she asked for a fresh assessment of the facts and the opportunity to state her case at a hearing. 14. On 12 December 2007 the Court of Appeal held a hearing attended by the public prosecutor and counsel for the applicant. However, no examination of the applicant herself took place. 15. In a final judgment of 19 December 2007 the Court of Appeal upheld the applicant’s conviction for threatening and insulting conduct, but reduced the sentence to 265 day-fines, amounting to a total of EUR 530. It held that there was no need for a fresh assessment of the facts because the applicant had not succeeded in challenging the validity of the assessment conducted by the court of first instance. 16. The applicant paid the fine in several instalments. 17. During the hearing before the Court it was pointed out that in January 2016, five years after the fine had been paid in full, the entry concerning the applicant’s conviction had been deleted from her criminal record. 18. On 15 April 2008 the applicant lodged an application with the Court complaining that she had not been heard in person by the Court of Appeal, and that this violated Article 6 § 1 of the Convention. 19. In a judgment of 5 July 2011 the Court declared admissible the complaint under Article 6 § 1 of the Convention and found a violation of that provision, holding as follows: “... 33. The Court notes that in the present case the Court of Appeal was invited to determine several questions relating to the facts of the case and to the person of the applicant. As before the court of first instance, the applicant raised, in particular, the question whether her criminal responsibility should have been deemed diminished, which might have had a major impact on the determination of the sentence. 34. The Court takes the view that that question could not have been settled by the Court of Appeal without a direct assessment of the applicant’s personal testimony, particularly since the judgment of the Matosinhos District Court had departed slightly from the conclusions of the psychiatric report without setting out the reasons for such a departure, as required under domestic law ... The Court of Appeal’s re-examination of that question should therefore have comprised a full rehearing of the applicant ... 35. Those factors are sufficient for the Court to conclude that in the instant case a public hearing should have been held before the appellate court. There has therefore been a violation of Article 6 § 1 of the Convention.” 20. As regards the claims in respect of pecuniary and non-pecuniary damage under Article 41 of the Convention, the Court stated the following: “41. The Court firstly considers that when, as in the instant case, an individual has been convicted after proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation. In that regard, it notes that Article 449 of the Portuguese Code of Criminal Procedure permits the reopening of proceedings at domestic level where the Court has found a violation of a person’s fundamental rights and freedoms. However, the specific remedial measures, if any, required of a respondent State in order to discharge its obligations under the Convention must depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court’s judgment in that case (see Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV, and Panasenko v. Portugal, no. 10418/03, § 78, 22 July 2008). In the present case, the only point at issue is the fact that the applicant was not given a hearing by the Court of Appeal. 42. Secondly, the Court notes that in the present case the only applicable basis for an award of just satisfaction lies in the fact that the applicant was not afforded the safeguards of Article 6. In that regard, it does not discern any causal link between the violation found and the pecuniary damage alleged, and rejects this claim. The Court cannot speculate as to what the outcome of the proceedings before the Court of Appeal would have been if it had examined the applicant at a public hearing (see Igual Coll v. Spain, no. 37496/04, § 51, 10 March 2009). On the other hand, it considers it appropriate to award the applicant EUR 2,400 in respect of non-pecuniary damage.” 21. On 5 July 2012 the Portuguese Government submitted an action plan to the Committee of Ministers concerning the execution of the Court’s judgment of 5 July 2011. They confirmed that the amount awarded to the applicant had been paid to her on 14 December 2011. As regards the general measures, the Government pointed out that the Prime Minister’s Office had proposed amending the Code of Criminal Procedure to allow hearings to be held in any court of appeal determining the issue of guilt or the sentence in respect of an accused person. 22. At the hearing before the Court it was pointed out that the aforementioned proposal had not been approved and had therefore not in fact been included in the final version of the revised Code of Criminal Procedure. 23. At the time of adoption of the present judgment no plans to reform the Code of Criminal Procedure were on the domestic authorities’ agenda. The procedure for supervising the execution of the judgment of 5 July 2011 was still pending before the Committee of Ministers. 24. Concurrently, on 18 October 2011, relying on Article 449 § 1 (g) of the Code of Criminal Procedure, the applicant lodged an application for review with the Supreme Court. She submitted that the Court of Appeal’s judgment of 19 December 2007 was incompatible with the Court’s judgment of 5 July 2011. 25. The prosecution submitted that the application should be allowed on the grounds that serious doubts could legitimately be raised about the conviction, particularly as regards the sentencing. 26. In a judgment of 21 March 2012 the Supreme Court refused to grant a review. It held that there was no cause for a review because the judgment delivered by the Court of Appeal was not incompatible with the Court’s judgment. It considered that the lack of a hearing for the applicant in the Court of Appeal had constituted a procedural irregularity that was not amenable to review, and held as follows: “... under domestic law, an application for review can be submitted solely in respect of judgments (in particular, convictions), and not in respect of orders concerning the conduct of proceedings, it being understood that ... ‘judgment’ denotes any judicial decision on a case or on a procedural application (see Article 156 § 2 of the Code of Civil Procedure). In the light of domestic law, however, a review of the judgment in the present case cannot be allowed on the basis invoked by the applicant, because the conviction is not incompatible with the European Court’s judgment (Article 449 § 1 (g) of the Code of Criminal Procedure). On the other hand, the procedure followed by the Court of Appeal in holding the hearing at the close of which the appeal was determined was incompatible with what the European Court has deemed vital in order to guarantee the rights of the defence. Under domestic law, where the accused is legally required to appear in court, his or her absence entails an irremediable nullity (Article 119 (c) of the Code of Criminal Procedure). However, even where a nullity is irremediable, it cannot give rise to an extraordinary application for review of the judgment ... Furthermore, as noted by the European Court, it is impossible to speculate about the decision which the Court of Appeal might have taken if the convicted person had been examined at the hearing which led to the decision on her appeal, and, in particular, about whether or not the sentence would have been the same. The European Court thus precluded from the outset any possibility that its decision might raise serious doubts about the conviction, regardless of the sentence actually imposed. In short, the conviction is not incompatible with the European Court’s binding decision, and no serious doubts arise as to its validity. For that reason, being aware that it is not always possible to secure a retrial or the reopening of proceedings under the applicable domestic law, as in the present case, the European Court decided to require the Portuguese State to compensate the applicant in respect of non-pecuniary damage, and thus to afford redress not for the unfairness of the conviction, which has not been established, but for a serious defect in the conduct of the proceedings which infringed the applicant’s defence rights ... For the above reasons, the applicant’s argument in support of her application to be granted a review is not substantiated. Consequently, the judges of the Criminal Division of the Supreme Court decide not to grant a review.”