CASE OF CZEKALLA v. PORTUGAL
Violation of Art. 6-1 and 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Georg Ress
10. The applicant was born in 1953 and lives in Sonsbeck (Germany). 11. On 12 January 1993 the applicant was arrested in connection with an anti-drug-trafficking operation as a result of which the Sintra public prosecutor’s office brought criminal proceedings against about forty persons. The applicant was interviewed on 13 January 1993 by an investigating judge, in the presence of an interpreter and a lawyer appointed under the legal-aid scheme, and was then placed in pre-trial detention. 12. On 21 January 1993 a search of his home was carried out and large sums of money in several different currencies and a self-defence spray were seized. 13. On 28 April 1993 the applicant, represented by a lawyer whom he had in the meantime authorised to act for him, asked to be interviewed in the presence of another person involved in the case, one A.G. That request was refused on an unspecified date. 14. On 7 January 1994 the public prosecutor’s office filed the prosecution submissions (acusação) against the applicant and forty-three other persons. Mr Czekalla was accused of aggravated drug trafficking and conspiracy (associação criminosa). The indictment listed fifty prosecution witnesses and the submissions ran to 156 pages. 15. On 19 January 1994 the applicant asked the judge to let him have a copy of the case file so that he could prepare his defence. The judge granted his request and the file was made available to the applicant’s lawyer at the registry of the Sintra District Court. 16. On 23 January 1994 the applicant applied to the judge personally in English, asking for a translation of the prosecution submissions into German, his native language. On 27 January 1994 the investigating judge at the Sintra District Court, ruling on the basis of Article 92 § 1 of the Code of Criminal Procedure, refused that application without looking into its merits on the ground that it was not written in Portuguese. 17. In a letter of 16 February 1994 the German embassy in Lisbon asked the Sintra District Court to send the applicant a German translation of the prosecution submissions. The embassy later informed the court that it could assist it by providing the services of a sworn translator (letter of 8 September 1994). 18. On 20 February 1994 the applicant submitted a request similar to that of 23 January 1994 but written in Portuguese. In response to that request, on 27 April 1994, an interpreter appointed by the Sintra District Court went to the prison where the applicant was being held and gave him an oral translation of the prosecution submissions. 19. As a number of the accused had asked for the judicial investigation to be formally opened, that was done, on 16 March 1994. An adversarial hearing was held on 21 April 1994. On 27 April 1994 the investigating judge made an order (despacho de pronuncía) committing thirty-five of the accused, including the applicant, for trial. The order was read out to all the accused and simultaneous interpretation was provided in several foreign languages. 20. On 28 June 1994 the applicant filed his defence pleadings and submitted a list of the defence witnesses. 21. In a judgment of 7 July 1994 the Supreme Court (Supremo Tribunal de Justiça) ruled that the Sintra District Court could hold the trial on the premises of the Lisbon Criminal Court in Monsanto on account of the lack of space at its own courthouse in Sintra. 22. The trial began on 8 November 1994 and lasted for eight months, during which fifty-eight hearings were held. On 21 February 1995, in other words while the trial was still taking place, the applicant withdrew the authority to act he had given to his lawyer and asked the court to appoint a lawyer under the legal-aid scheme. The court appointed Ms T.M. as his defence counsel. 23. The Sintra District Court gave judgment on 24 July 1995. It found the applicant guilty of aggravated drug trafficking but not of conspiracy, and sentenced him to fifteen years’ imprisonment. 24. On 3 August 1995 the applicant personally appealed to the Supreme Court. His application was written in German. By an order of 12 September 1995 the judge of the Sintra Criminal Court, ruling on the basis of Article 92 § 1 of the Code of Criminal Procedure, dismissed the appeal without looking into its merits on the ground that it was not written in Portuguese. 25. On 7 August 1995 Ms T.M. lodged an appeal with the Supreme Court on her client’s behalf. She alleged breaches of a number of provisions of the Code of Criminal Procedure and of Articles 5 and 6 of the Convention. 26. In September 1995 the applicant asked a lawyer of his own choice to represent him in the proceedings, thus dispensing with the services of the lawyer appointed under the legal-aid scheme. On 27 September 1995 the applicant’s new lawyer lodged an appeal with the Supreme Court against the order made by the judge of the Sintra Criminal Court on 12 September 1995. 27. On 20 September 1995 the case file was sent to the Supreme Court. 28. On 10 July 1996 the Supreme Court gave judgment on a number of interlocutory appeals and on those which, in the judges’ opinion, could already be decided without further examination. Applying Article 412 of the Code of Criminal Procedure, the Supreme Court declared inadmissible the applicant’s appeal against his conviction, lodged through Ms T.M., ruling that the grounds of appeal had not been satisfactorily explained. The appeal contained no submissions and did not indicate in what way the legal provisions whose breach it alleged should have been interpreted and applied. 29. On 11 December 1996 the Supreme Court delivered a second judgment. It first upheld an appeal by the prosecution concerning some of the defendants, including the applicant, finding that the latter was also guilty of conspiracy. The applicant’s sentence was accordingly raised to twenty-one years’ imprisonment. The Supreme Court then considered the appeal against the order made by the judge of the Sintra Criminal Court on 12 September 1995. It held that the application made by the applicant alone was provided for in Article 98 of the Code of Criminal Procedure, which permitted a defendant to submit pleadings or observations directly to the court. Taking into account Article 6 § 3 (e) of the Convention, the Supreme Court then set aside the impugned decision and ordered the appeal lodged by the applicant to be translated so that it could be “duly examined”. Lastly, the Supreme Court decided that the statements of one of the defendants, who had cooperated with the police investigating the case and had refused to answer the questions put by counsel for the other defendants, could not be admitted in evidence. 30. Some of the defendants, but not the applicant, appealed against the above decision to the Constitutional Court (Tribunal Constitucional). 31. The applicant requested a clarification (aclaração) of the last part of the Supreme Court’s judgment of 11 December 1996. He wanted to know in particular when his conviction would become final, regard being had to the Supreme Court’s decision to set aside the order of 12 September 1995. 32. In a judgment of 12 February 1997 the Supreme Court dismissed the above application on the ground that no clarification was called for. On the other hand, it corrected a mistake discovered in the judgment of 11 December 1996 concerning determination of the sentences imposed on some of the defendants and reduced the applicant’s sentence to eighteen years’ imprisonment. 33. On 15 July 1997 the Constitutional Court dismissed the appeals by some of the defendants. 34. On 18 July 1997 the applicant asked the Supreme Court to inform him how it intended to follow up the final part of the judgment of 11 December 1996 with regard to the application he had lodged with the Sintra Criminal Court on 3 August 1995. On an unspecified date the reporting judge ordered the registry to inform the applicant that the application would be examined by the Sintra Criminal Court in due course. 35. In a judgment of 1 October 1997 the Supreme Court made it clear that the applicant was to be regarded as serving his sentence, since the Constitutional Court had dismissed the appeals by other defendants, with the result that the Supreme Court’s judgment of 11 December 1996, as corrected by the judgment of 12 February 1997, had therefore become final. 36. On 14 October 1997 the applicant asked to be released. He submitted that the Supreme Court’s judgment of 11 December 1996 had not become final in so far as he himself was concerned. He pointed out that the last part of the judgment had not been executed, as his appeal of 3 August 1995 had not yet been duly examined as required by the judgment in question. 37. On 23 October 1997 the reporting judge refused the above application in the following terms: “The application in issue [the one made on 3 August 1995] ... was submitted under Article 98 of the Code of Criminal Procedure. If by means of that application the applicant intended to appeal against his conviction, it must be pointed out that it could not have such an effect. The appeal by the defendant Czekalla against his conviction was the one lodged by the lawyer representing him under the legal-aid scheme, which has already been heard. ... The content [of the application of 3 August 1995], whatever it is – and that is a matter to be ascertained when the file has been transmitted to the court of first instance – could not therefore affect or influence the course of the proceedings. That is why the application cannot prevent the transition to res judicata [trânsito em julgado] of the Supreme Court’s judgment of 11 December 1996.” 38. The applicant lodged a constitutional appeal against the above decision. On 16 January 1998 the reporting judge declared the appeal inadmissible for failure to exhaust ordinary remedies, the applicant having omitted to challenge the decision before the Judicial Committee (conferência). The applicant then appealed against the inadmissibility decision to the Constitutional Court, which dismissed his appeal in a judgment of 13 May 1998. 39. By a decision of 16 March 1999, of which the applicant was informed on 29 October 1999, the Sintra District Court ruled, in accordance with the Supreme Court’s judgment of 11 December 1996, on the application made by the applicant on 3 August 1995. It noted firstly that the application amounted to an appeal against conviction. It went on to say that the applicant had only reproduced the appeal lodged at the time by his lawyer, but had not made use of the remedy provided for in Article 63 § 2 of the Code of Criminal Procedure, whereby he could have revoked the act carried out by his counsel. It noted that in any event the application was signed only by the applicant and not by his lawyer, and that accordingly it could not be declared admissible. 40. In a judgment of 23 June 2000 the Evora Court of Appeal allowed an application for transfer to Germany made by the applicant under the Convention on the Transfer of Sentenced Persons. 41. The applicant was serving the remainder of his sentence in Germany when he was paroled on 14 March 2001. 42. On 11 November 1995 the applicant lodged a complaint against Ms T.M. with the Lisbon Bar Council. He alleged that her conduct had caused him prejudice in that, contrary to his instructions, she had herself lodged with the Supreme Court an appeal that did not satisfy the formal conditions. 43. On 16 October 1996 the Bar Council decided to open disciplinary proceedings against Ms T.M. 44. The applicant asserted that he had received from the Bar Council a letter dated 12 May 1997 informing him that a disciplinary penalty had been imposed on Ms T.M. for “unethical conduct”. The document concerned has not been produced before the Court. 45. The provisions of the Code of Criminal Procedure relevant to the present case are the following: “1. The accused may instruct counsel at any stage of the proceedings. 2. Where it is provided by law that the accused must be represented and the accused has not appointed or does not propose to appoint a person to defend him, the judge shall assign one officially, preferably a member or trainee member of the Bar; but the officially assigned representative shall cease to have authority to act if the accused instructs counsel of his own choosing. ...” “The accused may revoke any act carried out on his behalf by the person defending him, provided that he expressly declares that intention before any decision has been taken in respect of the act in question.” “1. Where a representative is assigned officially, the accused shall be notified of the fact if he was not present at the material time. 2. The officially assigned representative may be excused from assisting the accused if he puts forward a ground that the court considers valid. 3. The court may replace the officially assigned representative at any time on an application by the accused that contains a valid ground. 4. Until such time as he is replaced, an officially assigned representative shall continue to act in respect of subsequent steps in the proceedings. 5. The representative shall always be remunerated for his services; the terms and the amount shall be determined by the court, within the limits laid down in a scale approved by the Ministry of Justice or, failing that, in the light of the fees normally paid for services of a similar nature and of equal importance. Payment shall be the responsibility, as the case may be, of the accused, the assistente, the civil parties or the Ministry of Justice.” “1. To be valid, all steps in the proceedings, whether written or oral, must be made in Portuguese. 2. Where a person who does not know or master the Portuguese language has to take part in proceedings, an appropriate interpreter shall be appointed free of charge ... 3. An interpreter shall likewise be appointed if it proves necessary to translate a document in a foreign language which is not accompanied by a certified translation. ...” “An accused, even if at liberty, may submit observations, pleadings or applications at any stage of the proceedings, even if they are not signed by his representative, provided that they relate to the subject matter of the proceedings or are intended to protect his fundamental rights. Such observations, pleadings or applications shall always be placed in the case file.” “1. The pleadings shall set forth in detail the grounds of appeal and end with submissions, set out point by point, in which the appellant summarises the reasons for his appeal. 2. If the reasons concern the law, the submissions shall also indicate the following, failing which the appeal shall be dismissed: (a) the legal provisions that have been infringed; (b) the way in which, in the appellant’s opinion, the lower court interpreted or applied each provision and the way in which that provision should have been interpreted or applied ...” 46. Like Article 412 of the Code of Criminal Procedure, Article 690 of the Code of Civil Procedure requires an appellant to complete his appeal with submissions. These must likewise indicate both the legal provisions infringed and the way in which, according to the appellant, they should have been interpreted or applied by the lower court. However, paragraph 4 of Article 690 provides: “Where there are no submissions, or where the submissions are incomplete, obscure or complex ... the reporting judge must ask the appellant to produce them, add to them, clarify them or summarise them, failing which the appeal shall not be heard ...” 47. Formerly, it was the established case-law of the Supreme Court that it was permissible to dismiss outright any appeals submitted in breach of the formal conditions laid down in Article 412 of the Code of Criminal Procedure. In particular, it took the view that an appellant was not entitled to be asked to make good any deficiencies of his appeal, unlike the position provided for in Article 690 of the Code of Civil Procedure. That was justified by the particular requirements of speedy trial imposed by criminal procedure, the question of celerity being deemed not to be raised in the same terms in civil cases. It was therefore normal for the Supreme Court to dismiss appeals on points of law, for example, on account of the prolixity of the related pleadings, regard being had to the provision in Article 412 § 1 requiring an appellant to “summarise” the reasons for his appeal. 48. In its judgment no. 337/2000 of 27 June 2000, published in the Official Gazette on 21 July 2000, the Constitutional Court declared, with general binding force, that Article 412 of the Code of Criminal Procedure was unconstitutional if interpreted so as to permit the outright dismissal of an appeal on points of law on account of the wordiness of the related pleading without the appellant being first asked to rectify his appeal. It emphasised that the particular requirements of speedy trial imposed by criminal procedure could not justify such a restriction of the right to due process. 49. In its judgment no. 265/01 of 19 June 2001, published in the Official Gazette of 16 July 2001, the Constitutional Court declared, with general binding force, that Articles 59 and 61 of Legislative Decree no. 433/82, which are similar to Article 412 of the Code of Criminal Procedure and applicable to summary offences, were unconstitutional if interpreted so as to permit the outright dismissal of an appeal on account of its being unaccompanied by submissions without the appellant being first asked to make such submissions. The Constitutional Court referred to its case-law concerning the dismissal of appeals on points of law on account of the wordiness of the related pleading, observing that the same reasoning applied to the case under consideration, regard being had to the requirements of the principle of fair trial and the right to due process. 50. The legal profession in Portugal is free and independent. Lawyers are completely independent from the State and are bound only by their statute, approved by Legislative Decree no. 84/84 of 16 March 1984. 51. The Bar Council is a public-law association, regulated by Act of Parliament but independent of the State. It has disciplinary jurisdiction over lawyers, who must be registered with the Council in order to be able to practice, the question of disciplinary responsibility being a quite separate matter from any civil or criminal responsibility (Article 96 of Legislative Decree no. 84/84).