INOCENCIO v. PORTUGAL
Inadmissible
The applicant [Aníbal Armando Inocêncio] is a Portuguese national who was born in 1935 and lives at Covilhã (Portugal). He is a lawyer and acted in person before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 20 November 1995 the Covilhã Municipal Council decided to impose an administrative fine (coima) of 500,000 Portuguese escudos (PTE) on the applicant for carrying out work on his house without obtaining the necessary building permit – an administrative offence (contra-ordenação) under Legislative Decree no. 445/91. On 11 December 1995 the applicant challenged that decision in the Covilhã District Court. On 16 March 1996 the District Court upheld the fine; however, its decision was quashed by the Coimbra Court of Appeal (Tribunal da Relação) in a judgment of 25 September 1996, on the ground that State Counsel had not been present at the hearing in the Covilhã District Court. In an order of 9 December 1996 the judge of the Covilhã District Court set the case down for hearing on 6 February 1997 and requested the applicant to appoint a lawyer, stating that it was “not acceptable to conduct one’s own case in criminal proceedings”. On 9 January 1997 the applicant appealed against the order, alleging, in particular, a breach of Article 6 § 3 (c) of the Convention. In an order of 4 February 1997 the judge declared the appeal admissible and decided that it should not be heard by the appellate court until a decision had been given on the merits of the case. At the hearing on 6 February 1997 the judge, noting that the applicant was absent and considering his presence to be necessary, adjourned the hearing until 27 February 1997. At the hearing on 27 February 1997 the judge, noting that the applicant was in the section of the courtroom reserved for lawyers, asked him to take his place in the dock. The applicant replied that he was a lawyer and reaffirmed his intention to conduct his own case. The judge again asked him to take his place in the dock and, when the applicant again refused to do so, decided to exclude him from the courtroom and to appoint Mr P.C. as his official defence counsel. Mr P.C. requested an adjournment of five minutes in order to confer with the applicant, and the judge allowed his request. Once that time had elapsed, the hearing resumed in the applicant’s absence. After hearing evidence from a witness and the addresses of State Counsel and counsel for the defence, the judge ordered the applicant to return to the courtroom and delivered his judgment, upholding the fine of PTE 500,000. On 14 March 1997 the applicant, acting in person, appealed against that decision to the Coimbra Court of Appeal. He submitted, in particular, that his right to defend himself in person had been infringed. He also stated that the court had not heard evidence from the two witnesses called by him and argued that that had amounted to a further infringement of his defence rights. He relied, in particular, on Article 6 §§ 1 and 3 (b) and (c) of the Convention. In a judgment of 11 February 1998 the Court of Appeal dismissed that appeal and the one he had lodged on 9 January 1997. It stated, inter alia: “... It is still generally accepted – and this court has consistently held ... – that the accused must be assisted by counsel... The purpose of the defence in criminal proceedings is not merely to assist the accused but also to serve the interests of justice... Article 64 of the Code of Criminal Procedure implies that an accused cannot defend himself in person; that assertion has already been upheld by this Court of Appeal and the Lisbon Court of Appeal... Even where the accused has had appropriate legal training, statute law requires him to be assisted by counsel, who will be required to retain his composure, since it may be assumed that the accused would display a certain degree of agitation which would be harmful to his case and to the proper administration of justice... It follows that, where purely technical steps need to be taken by the defence, counsel cannot be replaced by the accused, even if the latter is a lawyer. In the instant case, the appeal was not filed by counsel for the defence; consequently, it cannot be entertained.” No appeal lay against that decision. Legislative Decree no. 445/91 of 20 November 1991 on the rules governing construction work by private individuals made it an administrative offence to carry out work on a house without obtaining the relevant permit from the local council (Article 54 § 1 (a)). Under Article 54 § 2, the maximum administrative fine that could be imposed for a breach of that provision was PTE 20,000,000. The rules governing administrative offences are laid down in Legislative Decree no. 433/82 of 27 October 1982. Article 1 of the Legislative Decree defines an administrative offence as an unlawful and reprehensible (censurável) act, contravening a legal provision which makes the offender liable to an administrative fine. The amount of the fine must be determined in each case by reference to the seriousness of the offence, the degree of guilt (culpa) attributable to the offender, the offender’s financial circumstances and the financial benefit he derived from carrying out the unlawful act in question (Article 18). Administrative fines may not in any circumstances be replaced by a custodial sentence. They may only give rise to enforcement proceedings (Article 89). Lastly, Legislative Decree no. 433/82 provides that the Criminal Code and the Code of Criminal Procedure are to apply, on a subsidiary basis, in relation to procedural matters. Article 32 of the Constitution, entitled “Safeguards in criminal proceedings”, provides in paragraph 8 that persons accused in proceedings relating to an administrative offence must be allowed to exercise their defence rights.