Resolution CM/ResDH(2011)242[1]
Execution of the judgment of the European Court of Human Rights
Feliciano Bichao case against Portugal
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”)[2],
Having regard to the judgment transmitted by the Court to the Committee once it became final;
Case name (App. No.)
Judgment of
Final on
Feliciano Bichao (40225/04)
20/11/2007
20/02/2008
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;
Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;
Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);
Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;
DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination thereof.
Appendix to Resolution CM/ResDH(2011)242
Information about the measures to comply with the judgment in the case of
Feliciano Bichao against Portugal
Action report on the execution
of the judgment of the European court of Human Rights
in the case of João Carlos Feliciano Bichão
(Application No. 40225/04) against Portugal
Original French
I.IDENTIFICATION OF THE CASE
Date of judgment: 20/11/2007
Application No.: 40225/04
Name of applicant: João Carlos Feliciano Bichão
Brief description of the violation:
(Article 6§1of the Convention) – Failure to disclose to the applicant a memoranda of the Public Prosecutor before the Court of Appeal (in 2003) and before the Constitutional Court (in 2004).
II.INDIVIDUAL MEASURES: The European Court of Human Rights found that the finding of a violation of Article 6§1 constituted in itself sufficient just satisfaction for non-pecuniary damage possibly suffered by the applicant. The Court found no causal link between the violation found and the pecuniary damages alleged and consequently rejected the applicant’s claim in this respect.
The criminal proceedings at issue concerned a dispute between the applicant and the mayor of a municipality concerning the ownership of a path alongside the applicant’s land. As regards the weight that the memoranda of the public prosecutor could have had on the outcome of the proceedings at issue, it should be noted that the investigating judge had rejected the applicant’s request for investigations, considering that there was no possibility of a criminal conviction in this case, due to the lack of objective elements of offence. The decision of the investigative judge was confirmed in 2003 by the appeal court.
Accordingly, it is not necessary to adopt individual measures.
(a)Payment of just satisfaction (costs and expenses):
Date: 23/05/2008
Amount: 1650 EUR
(b)Other: /
III.GENERAL MEASURES
(a)Publication: The judgment was immediately placed on line on the official site of the Procuradoria-Geral da República – Office for Documentation and comparative Law.
(b)Communication and dissemination: The judgment was communicated to the Judicial Service Commission on 27/11/2007 with a view to its dissemination and then disseminated.
(c)Other: The failure to disclose the memoranda of the Public Prosecutor in reply to the applicant’s appeal did not comply with Article 413§2 of the Code of Criminal Procedure, which stated that the memoranda of the parties concerned by the appeal had to be disclosed to the appellant (§23 of the judgment). The law provision is clear and this is an isolated violation.
As regards the procedure before the Constitutional Court (Tribunal Constitucional), the latter has adopted a procedure concerning the service of the memoranda of the Public Prosecutor to the parties. In a letter addressed to the Agent of the Portuguese government before the European Court of Human Rights the Constitutional Court indicated that, following the notification of the judgment of 20 November 2007, it adopted internal measures whereby the position of the Public Prosecutor is communicated to the appellant if he/she has not been informed of the reasons for the inadmissibility of an appeal.
In addition, the Procuradoria-Geral da República has sent to all judicial districts (distritos juridais) a recommendation aimed at asking further efforts to fully apply the adversarial principle in cases brought before courts competent to deal with family affairs and matters concerning minors.
The unofficial translations of the letter of the Constitutional Court, as well as of the letter addressed by the Procuradoria-Geral da República to the judicial districts have been provided to the Secretariat.
IV. CONCLUSION
The Portuguese authorities consider that the measures referred to above are sufficient to ensure the execution of the judgment and that no further individual or general measures are necessary.
[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies
[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies.
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