CORREIA DE MATOS v. PORTUGAL
Inadmissible
Georg Ress
The applicant, Mr Carlos Correia de Matos, is a Portuguese national. He was born in 1944 and lives in Viana do Castelo (Portugal). He presented his own case to the Court. He is an auditor and lawyer. His name was temporarily removed from the Bar Council’s roll by a decision of the Bar Council of 24 September 1993, published in the Official Gazette on 9 June 2000, which considered the exercise of the profession of lawyer to be incompatible with that of auditor. The facts of the case, as submitted by the parties, may be summarised as follows. On 4 July 1996 the applicant was committed to stand trial at the Ponte de Lima District Court for insulting a judge. The investigating judge officially assigned a lawyer to represent the applicant, contrary to the wishes of the latter, who stated, relying on Article 6 § 3 (c) of the Convention, that he wanted to defend himself. The applicant therefore appealed against the committal order (despacho de pronúncia) to the Porto Court of Appeal (Tribunal da Relação). The investigating judge declared the appeal inadmissible, however, on the ground that it had not been lodged by a lawyer and the applicant could not defend himself in person. The applicant lodged a complaint with the President of the Court of Appeal, which was dismissed for the same reason. The applicant then lodged a constitutional appeal with the Constitutional Court (Tribunal Constitucional). In an order of 16 May 1997 the President of the Court of Appeal stated that the issue raised by the applicant, namely the impossibility of defending himself, should be determined by the Constitutional Court and, accordingly, ordered the appeal to be transmitted to that court. On 23 September 1997 the judge rapporteur at the Constitutional Court, after noting that the applicant’s name had been temporarily removed from the Bar Council’s roll, asked him to instruct a lawyer pursuant to the Constitutional Court Act. On 6 October 1997 the applicant alleged that the relevant provision of that Act was contrary to the Constitution and asked for his appeal to be examined. In an order of 4 November 1997 the judge rapporteur considered that the provision in question was not contrary to the Constitution and again asked the applicant to instruct a lawyer, failing which the Constitutional Court would refuse to examine his appeal. On 19 November 1997 the applicant requested the matter to be submitted to a committee (conferência) of judges. In a judgment of 13 October 1999 the committee upheld the order complained of and pointed out that neither the relevant provision of the Constitutional Court Act nor the similar provisions of the Code of Civil Procedure were contrary to the Constitution. The Constitutional Court accordingly requested the applicant to instruct a lawyer. In the meantime the Ponte de Lima Court had fixed a hearing for 15 December 1998. The applicant maintained that at the start of the hearing he had requested leave to defend himself, which the court had refused. He had then been assigned a lawyer by the court. In a judgment of 21 December 1998 the court convicted the applicant and sentenced him to 170 day-fines. The applicant was also ordered to pay 600,000 Portuguese escudos (PTE) in damages to the assistente (the judge he had insulted). The applicant appealed against that judgment, but the judge, considering that his appeal was merely a statement within the meaning of Article 98 of the Code of Criminal Procedure, decided not to transmit it to the Court of Appeal. A complaint submitted by the applicant was treated in the same way in an order of 23 May 1999. On 3 December 1999 the judge of the Ponte de Lima Court, considering that the Amnesty Law no. 29/99 of 12 May 1999 should be applied in the present case, declared that the sentence imposed on the applicant (and not yet enforced) was void. However, on 14 August 2000 the applicant learned that the prosecution had instituted enforcement proceedings for the sum payable to the assistente in damages. Following a request by the applicant in that regard, the judge rapporteur at the Constitutional Court also declared, on 2 February 2000, that the proceedings still pending before that court had terminated. Under Articles 62, 63 and 64 of the Code of Criminal Procedure, defence counsel exercises the accused’s statutory rights. In certain cases, particularly as regards presence at hearings and the lodging of applications, it is compulsory to instruct counsel. If the accused does not appoint a lawyer, the judge must officially assign one. According to the established case-law of the Supreme Court, a defendant in criminal proceedings cannot represent himself in person even if he is a lawyer or judge. The Supreme Court considers that the statutory provisions authorising judges and lawyers to act in person before the courts are inapplicable in criminal cases (judgment of 19 March 1998, Boletim do Ministério da Justiça no. 475, p. 498).