CEDH · CASELAW;CLIN;ENG — 14 avril 2009

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Portugal - 41870/05 Judgment 14.4.2009 [Section II] Article 35 Article 35-3 Manifestly ill-founded Court not called on to seek inspiration in amendment contained in Protocol No. 14 and related to absence of “significant disadvantage”: preliminary objection dismissed   Facts : In 2004 the applicant brought proceedings against private citizens, requesting the payment of fees and the imposition of a fine in the event of the defendants’ failure to pay. The court partly allowed his claim. The applicant lodged an appeal against the judgment, alleging that it was null and void because the first-instance court had failed to rule on his request for the imposition of a fine. The judge at the first-instance court affixed a note to the case file sent to the appeal court, which concerned, inter alia , the question of nullity. The applicant was not informed of this note. Noting that the applicant had not raised any specific ground for nullification, the appeal court dismissed the appeal and upheld the judgment of the lower court. Law : Admissibility : The Government had raised an objection alleging the absence of a significant disadvantage for the applicant. Under Article 35 § 3 (b) of the Convention as amended by Protocol No. 14, the Court could declare an application inadmissible where “the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on its merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal”. Protocol No. 14 had not yet entered into force on the date the Court’s judgment was adopted. Admittedly, the Court could, and frequently had, sought inspiration from international instruments that had not yet entered into full legal force, particularly where these revealed common denominators in the relevant provisions of international law, especially and par excellence where they had already been accepted by a large majority of States (including, in the instant case, the respondent State). However, and in any event, the criteria set out in Article 35 § 3 (b) of the Convention as amended by Protocol No. 14 had not been met in this case. Nor was it clear either that an “insignificant disadvantage” would automatically arise from the fact, relied on by the Government, that the Court had not awarded financial compensation to the applicant under Article 41 of the Convention in a related case, or that the domestic courts had “duly considered” the case. In this latter connection, given that the failure to provide the applicant with a copy of the reporting judge’s note was at the material time provided for in the legislation and accepted by the case-law, the applicant had not had a genuine possibility of having such a complaint examined by the national courts. In the instant case, the court of appeal – which was the court of final instance – had not examined that complaint. Accordingly, the Court did not consider it necessary to seek inspiration in a text for the purpose of identifying a solution that, in any event, would not have been compatible with that instrument, even if it had already entered into force. It therefore had no choice but to dismiss the Government’s objection in this regard. Merits : The Court found a violation of Article 6 § 1 on account of the failure to provide the applicant with a copy of the note from the judge to the appeal court and the fact that the court of appeal had not replied to a ground of appeal submitted by the applicant concerning the first-instance court’s failure to rule on his application for the imposition of a fine. Conclusion : violation (unanimously). See also the judgment in Ferreira Alves v. Portugal (no. 5), no. 30381/06, of 14 April 2009.   © 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