CASE OF MOREIRA DE AZEVEDO v. PORTUGAL
Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Just satisfaction reserved
11. Mr Manuel Moreira de Azevedo, who is a Portuguese national and resides at Vila Nova de Famalicão, is a bus driver. 12. On 23 January 1977 one of his brothers-in-law, Mr Bernardo Gonçalves de Sousa, shot him in the head following a family quarrel. The applicant was rushed to the São João de Porto hospital where he remained until 2 February 1977. 13. On the same day the police arrested the suspect and communicated the facts to the Public Prosecutor, who requested the investigating judge of the First-Instance Court of Vila Nova de Famalicão to question him. 14. Since there was insufficient evidence to establish the offence of attempted murder, the investigating judge ordered, on 24 January 1977, the provisional release of Mr Gonçalves de Sousa, subject to the lodging of a security of 10,000 escudos. He also decided to transmit the file to the Public Prosecutor for the inquiry to be continued. 15. On 17 February a court medical officer examined the applicant and asked that the medical report drawn up by the São João de Porto hospital be communicated to him. 16. This report was supplied to him on 21 March and the Public Prosecutor fixed the date of the medical examination for the 28th. On that occasion the court medical officer noted that the injuries resulting from the attack had led to Mr Moreira de Azevedo’s being unfit for work for a period of 90 days. On 28 April he expressed the opinion that the applicant required another 30 days’ sick leave. On 26 May he pronounced the applicant to be recovered, but prescribed other specialist examinations. 17. On 2 June 1977 the applicant stated that he wished to intervene as an assistant (assistente) of the prosecuting authority in the preliminary investigation. The investigating judge allowed his application on 18 June 1977. 18. On 18 October and 7 November the applicant was examined by an ear, nose and throat specialist and an opthalmologist. 19. On the recommendation of the opthalmologist he underwent a neurological examination on 24 October 1978. This was followed on 11 June 1979 by an electroencephalogram and on 23 August by a further medical examination ordered by the Public Prosecutor. 20. On 3 October 1979 the Public Prosecutor decided, at the request of the court medical officer, to arrange for a further neurological examination. 21. As the Oporto Medical Faculty informed him that the applicant could not be examined until 1981, the Public Prosecutor entrusted this task to the court medical officer, who was invited to express an opinion in particular as to whether the assailant had acted with "the intention of causing death". 22. In a report dated 8 May 1980, the medical officer concluded that the applicant had recovered and that the period during which he had been unfit for work was the period already established. He also expressed the opinion that the assailant had indeed intended to kill. 23. In the light of this report, the Public Prosecutor communicated the file to the investigating judge on 21 May 1980, requesting him to open the preliminary investigation. 24. On 26 May 1980 the investigating judge asked the Council of Forensic Medicine (Conselho médico-legal) to examine the various medical reports (Article 200 of the Code of Criminal Procedure), but to no avail. The file was transferred to the Criminal Investigation Court (tribunal de instrução criminal) of Santo Tirso where it was registered on 1 July 1982. 25. On 8 March 1982 the applicant wrote to the investigating judge of Vila Nova de Famalicão seeking a further examination by the court medical officer and criticising the length of the proceedings. 26. On 6 July 1982 the judge of the Criminal Investigation Court of Santo Tirso sought the opinion of the Public Prosecutor as to whether an amnesty law was applicable. 27. In a letter of 13 October 1982, the applicant complained that his letter of 8 March 1982 (see paragraph 25 above) had not been added to the file; he repeated his request. 28. On 19 October 1982 the judge of the Criminal Investigation Court of Santo Tirso, in his turn, instructed the Council of Forensic Medicine to examine the medical reports and, on 4 November, asked the court medical officer to clarify some points in his report of 8 May 1980. 29. On 19 November 1982 the court medical officer recommended a further neurological examination, which the judge ordered on 23 November. 30. In the meantime, by a letter of 13 November 1982 received at the Criminal Investigation Court on 2 February 1983, the Council of Forensic Medicine had asked the court medical officer to specify the number of days during which the applicant had been unfit for work and also to indicate the after-effects of the attack. On 23 February 1983 the medical officer described the injuries and stated that the applicant had been unfit for work for 120 days and still suffered from disability. He had lost a part of his skull and was deaf in the left ear. 31. On 8 March 1983 Mr Moreira de Azevedo was examined by a neurologist who sent his report to the judge on 5 July. 32. On 21 March 1984 the judge requested the court medical officer to submit his report. He did so on 5 April 1984 and on the same day the document was sent to the Council of Forensic Medicine. 33. On 26 April 1984 that body approved the findings of the court medical officer’s report, adding that the attack had resulted in a disability and a total incapacity. 34. On 14 May 1984 the judge ordered that the applicant and the accused be questioned on 24 May 1984. The applicant was questioned on that date but the accused was unwell and did not appear. 35. On 25 May 1984 the applicant asked for five witnesses to be heard. 36. On 28 May the judge decided that the accused should be questioned on 7 June 1984. However, as the latter had absented himself for an indefinite period, the bailiff was unable to serve this order on him. 37. On 5 June 1984 Mr Moreira de Azevedo submitted a report by the Public Health Department dated 15 April 1981 and drawn up following a medical examination. According to this document he suffered from a 64% incapacity. 38. On 6 June 1984 the judge issued a warrant for the accused’s arrest and, on 14 June, questioned the witnesses named by the applicant. 39. On 1 July 1984 the police officer assigned to the case informed the judge that Mr Gonçalves de Sousa had disappeared. 40. On 5 July 1984 the judge closed the preliminary investigation and forwarded the file to the Public Prosecutor. On 10 July the latter requested the opening of adversarial investigation proceedings and drew up the prosecution submissions (acusação). He sought the accused’s arrest, contending that provisional release was not available to persons charged with attempted murder. 41. On 16 July 1984 the judge declared the adversarial investigation proceedings open and ordered the accused’s arrest, but the latter could still not be traced. 42. On 27 July the judge closed the investigation and forwarded the file to the Public Prosecutor, who drew up the prosecution submissions on 8 October 1984. 43. The accused was committed for trial on 16 November 1984 and on 26 November 1984 was arrested and remanded in custody. 44. On 12 December 1984 the court scheduled the hearing for 5 February 1985. 45. On 21 December the applicant asked for evidence to be taken from two witnesses. 46. On 5 February 1985, at the beginning of the hearing, the applicant’s lawyer submitted an oral request to the First-Instance Court of Vila Nova de Famalicão that the fixing of the amount of any compensation be deferred until the subsequent enforcement proceedings ("liquidação em execução de sentença"), in accordance with Article 34 para. 3 of the Code of Criminal Procedure. 47. On 18 February 1985 the court acquitted the accused on the charge of attempted murder. However, it sentenced him to 14 months’ imprisonment for causing grievous bodily harm and ordered him to pay damages to the applicant in an amount to be fixed in the enforcement proceedings. 48. The applicant and the accused filed appeals. 49. On 30 October 1985 the Oporto Court of Appeal (tribunal de relação) allowed Mr Gonçalves de Sousa’s appeal. At the same time it declared the criminal prosecution out of time (five-year limitation period). 50. Mr Moreira de Azevedo then appealed to the Supreme Court (Supremo Tribunal de Justiça) which, on 7 May 1986, upheld the appeal court’s judgment. The letter of notification was sent to the applicant on the following day. He was deemed to have received it on the third day after its despatch (Article 1 para. 3 of Legislative Decree No. 121/76). 51. In Portugal criminal proceedings are in principle brought by the Public Prosecutor. According to Article 1 of Legislative Decree No. 35007 of 13 October 1945 "criminal proceedings are the responsibility of the authorities; they shall be brought by the Public Prosecutor subject to the restrictions provided for in the following Articles". These restrictions relate to the cases in which the police or administrative authorities or other State organs may bring criminal proceedings, but they apply in general only for petty offences. Legislative Decree No. 605/75 of 3 November 1975 also states, in Article 1 thereof, that "except as provided for by law, criminal proceedings shall be conducted by the Public Prosecutor who shall open the preliminary inquiry or communicate the file to the investigating judge, as the case may be". 52. In certain cases, private persons may participate in the criminal proceedings as assistentes. Article 4 of Legislative Decree No. 35007 provides as follows: "The following may participate in proceedings as assistentes: 1o Those persons without whose accusation or complaint the Public Prosecutor cannot bring a prosecution; 2o The victims, namely those whose interests the criminal law sought especially to protect by prohibiting the offence; 3o The husband in trials concerning offences of which his wife has been the victim, unless she objects thereto; 4o The spouse, where there is no judicial separation or separation of property, or the surviving spouse or any ascendant, descendant, brother or sister, in cases where the victim is deceased or incapable of managing his or her own affairs; 5o Any person in trials concerning embezzlement, bribery, misappropriation of public funds or corruption. Para. 1o - The assistentes perform the function of assistants to the Public Prosecutor; their role in the proceedings is subordinate to that of the Public Prosecutor, except in cases provided for by the law. Para. 2o - However, the assistentes are entitled in particular: 1o to make prosecution submissions independently of those filed by the Public Prosecutor; 2o to intervene directly in the adversarial investigation proceedings by adducing evidence and requesting the judge to take the appropriate measures; 3o to appeal against the order committing the accused for trial, the judgment or the order terminating the proceedings, even if the Public Prosecutor has not done so. Para. 3o - ... (repealed) Para. 4o - In cases where the assistentes make prosecution submissions relating to facts different from those which are the subject of the prosecution submissions filed by the Public Prosecutor, they may not appeal against the decision of the court if it accepts the Public Prosecutor’s submissions. Para. 5o - The assistentes may intervene at any moment in the proceedings up to five days before the trial hearing and shall accept the state of the proceedings as they stand at that stage." The preamble to the Decree states as follows: "3. Criminal proceedings shall be brought by the Public Prosecutor in his capacity as a State authority. The right to punish an offender is a right that belongs exclusively to the State and consequently private individuals may, in accordance with the law, assist in bringing a prosecution, but have no personal right to bring one ... ." Article 70 of the Code of Criminal Procedure provides that the preliminary investigation is to be secret. However, according to paragraph 1 thereof the accused and the assistente may have access to certain documents in the file provided that this does not impede the discovery of the truth. 53. The Code of Criminal Procedure applicable at the material time - new provisions came into force with effect from 1 January 1988 - contained several provisions on the victim’s right to compensation: "A claim for damages resulting from a punishable offence for which the perpetrators are liable must be brought in the criminal proceedings in process and may be brought in separate proceedings in the civil courts only in the cases provided for by this Code". "Except in the cases in which criminal proceedings may be brought only on the basis of a complaint or an accusation by a private party, civil proceedings may be instituted separately in the civil courts where the prosecution has not been brought by the Public Prosecutor within six months of the complaint being laid or where no action has been taken on the complaint for the same period, where the proceedings have been discontinued or where the accused has been acquitted. Para. 1o In cases in which criminal proceedings may be brought only on the basis of a complaint or an accusation by a private party, the victim may bring civil proceedings, but if he does so, the criminal proceedings shall lapse. Para. 2o Where criminal proceedings have been instituted, civil proceedings may be brought separately only where no action has been taken in the criminal proceedings for six months or more through no fault of the assistente where the proceedings have been discontinued or where the accused has been acquitted." "The claim for damages may be lodged in criminal proceedings even by a person who has not intervened as an assistente. Para. 1o The Public Prosecutor shall seek damages on behalf of the State, where appropriate, and on behalf of bodies serving public interests or the legally incapacitated to whom compensation is payable, if they are not represented by a lawyer in the proceedings. Para. 2o The statement of claim for damages shall be set out in articles. Para. 3o The evidence relating to the award of damages shall be adduced within the time-limits applying for the criminal proceedings ..." "If the accused is convicted, the court shall decide the amount to be paid to the victims in respect of damages, even where no claim has been lodged. Para. 1o In cases where the law accords civil compensation to other persons the amount shall be determined for each party. Para. 2o The amount of compensation shall be determined at the discretion of the court which shall take into account the seriousness of the offence, the pecuniary and non-pecuniary damage and the financial and social position of the injured party and of the offender. Para. 3o The persons entitled to compensation may request, before judgment is pronounced at first instance, that the amounts of compensation be decided in enforcement proceedings. In such circumstances assessment and enforcement shall take place in the civil courts, the criminal judgment serving as the basis for enforcement. Para. 4o If, in the cases provided for by law, the civil action for damages is pending or has been judged in the civil courts, compensation shall not be determined in the criminal proceedings." Article 12 of Legislative Decree No. 605/75, cited above, states moreover as follows: "In cases where the accused is acquitted, the court shall order the accused to pay damages in respect of proven unlawful acts or liability based on risk, if established. In such cases Article 34 of the Code of Criminal Procedure shall apply, adapted as necessary." 54. In a "ruling" judgment (assento) of 28 January 1976 the Supreme Court held that the civil courts had no competence to award compensation if compensation had already been awarded in the criminal proceedings (Diário da República, Series 1, 11 March 1976). Although this decision concerned civil and criminal damages for road traffic infringements, it set out the following general considerations: "Article 29 [of the Code of Criminal Procedure] establishes the principle of the interrelation ... between the criminal and the civil proceedings but with greater emphasis on the priority of the criminal proceedings over the civil proceedings ... ... ... The formulation of prosecution submissions in the criminal proceedings, which are intended to secure the conviction of the accused, can therefore be seen as implying a request for compensation to be awarded to the victim, because according to the law such compensation is a consequence of a conviction. ... ... the amount of compensation is determined by the criminal judgment regardless of whether the victim has filed a civil claim ... ."