LOWRY v. PORTUGAL
Inadmissible
Matti Pellonpää
The applicant is a British national born in 1944. He is currently detained at Caxias Prison in Portugal. The applicant is represented before the Court by Ms Gudrun Parasie, lawyer and director of European Legal Advice, a human rights association in London. A. a. The proceedings against the applicant In April 1997, a preliminary investigation was opened concerning the activities of the applicant as partner, manager and director of the company “Paramount Portugal - Consultadoria Comercial Lda.”. At least one person had complained to the Portuguese Stock Exchange authority (Comissão do Mercado de Valores Mobiliários, hereinafter CMVM) about the activities of this company. It was accused of selling shares and securities of other international companies which, allegedly, did not have a real existence or activity. On 22 April 1997, officials of the CMVM and of the Judicial Police (Polícia Judiciária) entered and searched the two offices of Paramount in Lisbon and arrested the applicant. Numerous files, including computer data, discs and records, were seized. On 24 April 1997, the applicant was brought before the investigating judge at the Lisbon Criminal Investigation Tribunal (Tribunal de Instrução Criminal) and questioned in the presence of his lawyer. After questioning the applicant, the investigating judge told him that he was suspected of having committed the offences of forgery of shares (Articles 262 and 267 of the Penal Code) and aggravated fraud (Articles 217 and 218 of the Penal Code). Considering the danger of disruption of the investigations, the danger of absconding and taking into account also that the applicant was a foreigner, the investigating judge ordered the detention on remand of the applicant. The applicant unsuccessfully appealed to the Lisbon Court of Appeal (Tribunal da Relação), which upheld the investigating judge’s order by a decision of 1 July 1997. Thereafter the applicant filed numerous applications for release, which were rejected by the Lisbon Court of Appeal on 23 September 1997, 4 February 1998 and 25 March 1998. He also applied for bail on medical grounds, which was refused by the investigating judge on 19 November 1997. The Lisbon Court of Appeal upheld this decision by a judgment of 25 February 1998. The applicant also filed a constitutional complaint with the Constitutional Court (Tribunal Constitucional) against the Lisbon Court of Appeal’s decision of 23 September 1997. This complaint, concerning the rules of the Code of Criminal Procedure governing the grounds on which detention on remand can be ordered, was declared partly inadmissible and rejected as partly ill-founded, by a judgment of 4 March 1998. On 19 December 1997, the investigating judge issued a decision by which the proceedings were declared exceptionally complex (excepcional complexidade). As a result of this decision, the maximum duration of detention on remand before indictment (acusação) by the Public Prosecutor according to the Code of Criminal Procedure was increased from eight months to one year. During the period of investigation, the applicant was questioned by the police on 23, 24 and 25 July 1997 and on 30 September, 1, 2 and 3 October 1997. On 21 April 1998, the Public Prosecutor filed his indictment against the applicant and eight other persons. The applicant was accused of fraud, criminal association, forgery of documents and illegal use of databases. According to the prosecution, the applicant and the other eight accused persons contacted potential customers by telephone, without their having given their consent, offering to send them detailed information on attractive financial investments all over the world. Shares of companies with no real existence were then sold to the customers, payments being made by cheque or bank transfer to a specified account in a Swiss bank. These customers were all non-Portuguese and the shares were first sent to Switzerland and then from Switzerland to the customers. It was alleged that the false share certificates were printed, filled in and signed in Portugal, under the direction and control of the applicant. The indictment was served on the applicant on the same day, with the help of an interpreter. An English translation of the indictment was subsequently given to the applicant, on 19 May 1998. Several customers of the “Paramount Portugal - Consultadoria Comercial Lda.” subsequently filed private prosecutions and requests for damages. On 24 April 1998, the applicant filed with the investigating judge an application for release. He alleged, invoking Article 6 § 3 (a) of the Convention, that the service of the indictment was null and void due to the absence of a written translation. The applicant submitted that the maximum lawful duration of his detention on remand had expired, which rendered his further detention unlawful. On the same day, the investigating judge rejected the application, noting that neither Article 6 § 3 (a) nor the relevant Portuguese legislation required a written translation of the indictment. The investigating judge added that in any event the one-year period ran until the issuing of the indictment and not until its service. A writ of habeas corpus filed by the applicant before the Supreme Court (Supremo Tribunal de Justiça) on 4 May 1998, on the same grounds, was also rejected, by a judgment of 7 May 1998. The applicant appealed to the Lisbon Court of Appeal against the decision of the investigating judge. The Court of Appeal, by a judgment of 1 July 1998, upheld this decision. On 13 July 1998, the applicant filed a constitutional complaint before the Constitutional Court against this decision. By a judgment of 23 September 1998, the Constitutional Court rejected the complaint as ill-founded, referring to the European Court’s judgment in the Kamasinski v. Austria case (judgment of 19 December 1989, Series A no. 168). The trial opened on 21 September 1998 in the First Chamber of Lisbon Criminal Court (1ª Vara Criminal). The court decided, at the first hearing and as a preliminary issue, that the proceedings could be directed only against the applicant (separação de culpas), the whereabouts of the other eight accused persons being unknown. Several other hearings were held until 9 December 1998. By a judgment of 5 March 1999, the applicant was convicted of the four offences in question and sentenced to nine years’ imprisonment. The applicant appealed to the Supreme Court, where the proceedings are currently pending. b. The applicant’s conditions of detention and his medical situation According to the applicant, throughout the entire period of his detention he was held in a 5-person cell with 13 other people with little or no provision for recreation or welfare. He developed numerous tumours in his throat and suffered from high blood pressure, high cholesterol and thyroid problems. In a letter dated 27 March 1998 from the director of the private office of the Minister of Justice to the Portuguese Parliament (on request of one of the applicant’s representatives), the following information concerning the medical situation of the applicant was given : The applicant was first examined by the prison doctor on 24 April 1997, two days after his arrest. He was again examined on 5 May 1997. As a result, the applicant underwent a certain number of tests as well as an electrocardiogram and abdominal, renal and thyroidal scans. An endocrinological consultation in a public hospital was scheduled for 30 January 1998 but the applicant did not attend it for lack of transportation. However, the applicant was taken to a private doctor for this consultation on 18 March 1998. His personal doctor also visited the applicant in prison on 24 July 1997, 8 October 1997 and 10 March 1998. B. Relevant domestic law and practice Articles 86 § 1 and 89 § 2 of the Portuguese Code of Criminal Procedure - applicable at the time of the facts - provided that the accused was not given access to the prosecution evidence until the date of the indictment. By a judgment of 19 February 1997, published in the Official Gazette (Diário da República) of 30 April 1997, the Constitutional Court, referring to the European Court’s judgment in Lamy v. Belgium (judgment of 30 March 1989, Series A no. 151), ruled that these provisions would be contrary to the Constitution if interpreted in such a way as to deny access to the case-file to an accused who wished to challenge the prosecution’s views on the lawfulness of the detention.