Resolution CM/ResDH(2010)179[1]
Execution of the judgment of the European Court of Human Rights
Pijevschi against Portugal
(Application No. 6830/05, judgment of 13 November 2008, final on 13 February 2009)
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”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the breach of the applicant’s right of access to a Court of Appeal for review of the correctness of his conviction, due to the Appeal Court’s particularly strict interpretation of a procedural rule, conflicting with the interpretation given by the Court of First Instance (violation of Article 6§1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
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 erase their consequences so as to achieve as far as possible restitutio in integrum; and
- general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2010)179
Information on the measures taken to comply with the judgment in the case of
Pijevschi against Portugal
Introductory case summary
This case concerns the breach of the applicant’s right of access to a Court of Appeal for a review of the correctness of his conviction, due to the Appeal Court’s particularly strict interpretation of a procedural rule (violation of Article 6§1).
In 2005, the Évora Court of Appeal declared the appeal inadmissible as being out of time as a result of the different interpretation of the procedural rules on time-limits for filing briefs, whereas the applicant had followed the time-limit fixed by the Court of First Instance.
The European Court found that the applicant could not be accused of having failed to act with the necessary care and diligence or of having committed an error for which he was to blame, especially as he had followed the instructions given by the Court of First Instance. The Court considered that the appellate court’s particularly strict interpretation of procedural rules, conflicting with the interpretation given by the Court of First Instance, was incompatible with the principle of legal certainty and had deprived the applicant of the right of access to the Court of Appeal (§ 41-42 of the judgment).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
The European Court awarded no just satisfaction to the applicant.
b) Individual measures
The applicant was sentenced in 2004 to six years and nine months’ imprisonment and excluded from the national territory for 15 years. He was released on parole in February 2006 and then expelled on 3 March 2006.
Act No. 48/2007 amending the Code of Criminal Procedure permits the re-examination of domestic judgments having the status of res judicata, following a judgment of the European Court finding a violation of the Convention (Article 449). The government indicates that, under Article 450, the public prosecutor, as well as others including the person convicted, is entitled to ask for re-examination without any time-limit.
Consequently, no other individual measure seems necessary.
II.General measures
Article 411 of the Code of Criminal Procedure provided at the material time that appeals against first-instance courts had to be filed within fifteen days as from the notification of conviction. However, in cases where the transcript of the hearing was necessary, certain courts provided a supplementary delay of ten days as from the date when the transcript was put at the disposal of the applicant.
Following discrepancies in the case-law, in its judgment No. 44/2004 the Constitutional Court decided, in a case similar to that at issue, that the interpretation according to which Article 411 of the Code of Criminal Procedure prevented the admissibility of an appeal submitted within the time-limit previously fixed by the Court of First Instance, would infringe the right to defence pursuant to Article 32 of the Constitution. The Supreme Court has also annulled a decision similar to the judgment of the Évora Court of Appeal at issue, considering that it breached the fairness of a trial. The European Court made reference to the judgment of the Constitutional Court mentioned above (§43 of the judgment).
The judgment of the European Court has been translated into Portuguese and published on the internet, in the website managed by the Office of the Principal State Prosecutor ( - Gabinete de Documentação e Direito Comparado). It has also been sent to the Judicial Service Commission and sent out to the competent authorities.
III.Conclusions of the respondent state
The government considers that no other individual measure is required, that the general measures adopted will prevent similar violations and that Portugal has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies
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