CEDH · CASELAW;CLIN;ENG — 11 juillet 2017

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Portugal (no. 2) [GC] - 19867/12 Judgment 11.7.2017 [GC] Article 6 Criminal proceedings Article 6-1 Access to court Criminal charge Fair hearing Complaint about refusal by domestic court to re-open criminal proceedings following finding of a violation of Article   6 by European Court: admissible Refusal by Supreme Court of request for revision of a criminal judgment further to a judgment of European Court finding a violation of Article   6: no violation Facts – On 21   March 2012 the Supreme Court delivered a judgment dismissing a request for the reopening of a criminal judgment which had been lodged by the applicant following a judgment delivered by the European Court of Human Rights (“the Court”) finding a violation of Article   6 §   1 (see Moreira Ferreira v.   Portugal , 19808/08 , 5   July 2011). Under Article   41, the Court found that a retrial or reopening of proceedings at the applicant’s request would, in principle, constitute an appropriate means of redressing the violation found. In that regard it noted that Article   449 of the Portuguese Code of Criminal Procedure allowed domestic proceedings to be reopened where the Court had found a violation of the applicant’s rights and fundamental freedoms. The Supreme Court held that the Court’s judgment was not incompatible with the applicant’s conviction and raised no serious doubts about its validity, as required under Article   449 §   1   (g) of the Code of Criminal Procedure. The applicant complained that the Supreme Court had misinterpreted the Court’s judgment, in breach of Articles 6 §   1 and 46 §   1 of the Convention. Law – Article   6 §   1 (a)     Admissibility (i)     Whether Article   46 of the Convention precluded the examination by the Court of the complaint under Article   6 of the Convention – The alleged lack of fairness of the procedure followed in examining the application for review, and more specifically the errors which the applicant claimed had vitiated the reasoning of the Supreme Court, constituted new information in relation to the Court’s previous judgment. Furthermore, the supervision procedure in respect of the execution of the judgment, which was still pending before the Committee of Ministers, did not prevent the Court from considering a new application in so far as it included new aspects which were not determined in the initial judgment Therefore, Article   46 of the Convention did not preclude the Court’s examination of the new complaint under Article   6 of the Convention. (ii)     Whether the applicant’s new complaint was compatible ratione materiae with Article   6 §   1 of the Convention – The Supreme Court had to compare the conviction in question with the grounds on which the Court had based its finding of a violation of the Convention. Although the Supreme Court’s task had been to adjudicate on the application for the granting of a review, it had also conducted a re-examination on the merits of a number of aspects of the disputed issue of the applicant’s absence from the hearing on her appeal and the consequences of her absence for the validity of her conviction and sentence. Given the scope of the Supreme Court’s scrutiny, the latter should be regarded as an extension of the proceedings concluded by the judgment of 19 December 2007 confirming the applicant’s conviction. That scrutiny had once again focused on the determination, within the meaning of Article   6 §   1 of the Convention, of the criminal charge against the applicant. Consequently, the safeguards of Article   6 §   1 of the Convention were applicable to the proceedings before the Supreme Court. Consequently, the Government’s objection that the Court lacked jurisdiction ratione materiae to examine the merits of the complaint raised by the applicant under Article   6 of the Convention had to be dismissed. Conclusion : admissible (majority). (b)     Merits – According to the Supreme Court’s interpretation of Article   449 §   1   (g) of the Code of Criminal Procedure, procedural irregularities of the type found in the instant case did not give rise to any automatic right to the reopening of proceedings. That interpretation, which had the effect of limiting the number of cases of reopening of criminal proceedings that had been terminated with final effect, or at least making them subject to criteria to be assessed by the domestic courts, did not appear to be arbitrary, and was also supported by its settled case-law to the effect that the Convention did not guarantee the right to the reopening of proceedings or to any other types of remedy by which final judicial decisions could be quashed or reviewed, and by the lack of a uniform approach among the member States as to the operational procedures of any existing reopening mechanisms. Moreover, a finding of a violation of Article   6 of the Convention did not generally create a continuing situation and did not impose on the respondent State a continuing procedural obligation. The Chamber’s judgment of 5   July 2011 stated that a retrial or reopening of the proceedings at the applicant’s request was “in principle an appropriate means of redressing the violation”. A retrial or the reopening of the proceedings was thus described as an appropriate solution, but not a necessary or exclusive one. Moreover, the use of the expression “in principle” narrowed the scope of the recommendation, suggesting that in some situations a retrial or the reopening of proceedings might not be an appropriate solution. The Court therefore refrained from giving binding indications on how to execute its judgment, and instead opted to afford the State an extensive margin of manoeuvre in that sphere. Moreover, the Court could not prejudge the outcome of the domestic courts’ assessment of whether it would be appropriate, in view of the specific circumstances of the case, to grant a retrial or the reopening of proceedings. Accordingly, the reopening of proceedings had not appeared to be the only way to execute the Court’s judgment of 5 July 2011; at best, it had represented the most desirable option, the advisability of which had been a matter for assessment by the domestic courts, having regard to Portuguese law and to the particular circumstances of the case. The Supreme Court, in its reasoning in the judgment of 21 March 2012, had analysed the content of the Court’s judgment of 5 July 2011 and had set out its own interpretation of the latter. In view of the margin of appreciation available to the domestic authorities in the interpretation of the Court’s judgments, and in the light of the principles governing the execution of judgments, the Court considered it unnecessary to express a position on the validity of that interpretation. Indeed, it was sufficient for the Court to satisfy itself that the judgment of 21 March 2012 was not arbitrary, that is to say that the judges of the Supreme Court had not distorted or misrepresented the judgment delivered by the Court. The Court could not conclude that the Supreme Court’s reading of the Court’s 2011 judgment had, viewed as a whole, been the result of a manifest factual or legal error leading to a “denial of justice”. Having regard to the principle of subsidiarity and to the wording of the Court’s 2011 judgment, the Court considered that the Supreme Court’s refusal to reopen the proceedings as requested by the applicant was not arbitrary. The Supreme Court’s judgment of 21 March 2012 had provided a sufficient indication of the grounds on which it was based. Those grounds fell within the domestic authorities’ margin of appreciation and had not distorted the findings of the Court’s judgment The above considerations were not intended to detract from the importance of ensuring that domestic procedures were in place whereby a case could be re-examined in the light of a finding that Article   6 of the Convention had been violated. On the contrary, such procedures might be regarded as an important aspect of the execution of its judgments and their availability demonstrated a Contracting State’s commitment to the Convention and to the Court’s case-law. Conclusion : no violation (nine votes to eight). (See also Meftah and Others v.   France [GC], 32911/96 et al., 26   July   2002, Information   Note   44 ; Lenskaya v.   Russia , 28730/03, 29   January   2009, Information   Note   115 ; Verein gegen Tierfabriken Schweiz (VgT) v.   Switzerland (no. 2) [GC], 32772/02, 30   June 2009, Information   Note   120 ; Egmez v.   Cyprus [dec.], 12214/07, 18   September   2012, Information   Note   155 ; Bochan v.   Ukraine (no.   2) [GC], 22251/08, 5   February   2015, Information   Note   182 ; and Yaremenko v.   Ukraine (no.   2) , 66338/09 , 30   April 2015)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes