FOURTH SECTION
DECISION
Applications nos. 37767/19 and 42670/19
Maria Teresa DA CONCEIÇÃO LOPES RIBEIRO
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 19 September 2023 as a Committee composed of:
Tim Eicke, President,
Branko Lubarda,
Ana Maria Guerra Martins, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the applications against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicant, lodged on the dates indicated in the appended table;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. On 21 September 2015 the applicant filed a criminal complaint against two judges of the Court of Appeal. She accused them of denial of justice, following the dismissal of an appeal she had lodged against a decision of the Social Security refusing her legal aid in other sets of proceedings.
2. The criminal complaint in question gave rise to investigation proceedings and disciplinary proceedings against the two judges, which were later discontinued.
3. The two judges sued the applicant for false accusation and on 22 November 2016 she was charged. A lawyer was then appointed to represent her in the criminal proceedings.
4. On 11 December 2017 the Lisbon Criminal Court convicted the applicant of false accusation, sentencing her to a EUR 900 fine.
5. On 14 December 2017, knowing that the applicant wanted to appeal against the conviction, the legal aid lawyer who was representing her asked to be relieved of his duties (pedido de escusa).
6. On 18 December 2017 the Lisbon Criminal Court declared that an interruption of the appeal time-limit should be considered.
7. Between 22 December 2017 and 2 March 2018, four legal aid lawyers consecutively appointed to represent the applicant asked to be relieved of their duties.
8. On 16 March 2018 a new legal aid lawyer was appointed to represent the applicant.
9. On 23 April 2018 the applicant asked for the lawyer to be replaced on the grounds that she did not agree with the terms of the appeal he had prepared against her conviction.
10. Between 17 May 2018 and 4 January 2019, six other legal aid lawyers were consecutively appointed to represent the applicant after each one asked to be relieved of their duties.
11. By a decision of 8 January 2019, served on the applicant on 10 January 2019, the Lisbon Criminal Court declared that, according to well-established Portuguese case-law, the time-limit to lodge the appeal was not interrupted by the consecutive appointments of legal aid lawyers. Therefore, the respective deadline had in the meantime expired in accordance with Articles 39 § 1, 42 § 3 and 44 § 1 of the Law on Legal Aid.
12. On 10 January 2019 the last legal aid lawyer appointed to represent the applicant explained to her that it would be useless to lodge an appeal against her conviction since the time-limit had expired. On 19 January 2019 she requested that the Lisbon Criminal Court replace him.
13. On 5 February 2019 the Lisbon Criminal Court dismissed the applicant’s request on the grounds that twelve legal aid lawyers had been consecutively appointed to represent her. In addition, it observed that the function of legal counselling lies with lawyers and that it transpired from the exchange of e-mails and telephone calls with the lawyers that their duties had been duly performed.
14. Relying on Articles 6 and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention, the applicant complains of the impossibility of appealing against her conviction, following several court‑appointed lawyers’ requests to be relieved of their duties and owing to the failure to suspend the deadline to lodge the appeal until the new legal aid lawyers were appointed (application no. 37767/19).
15. Relying on Articles 6, 10 and 14 and Article 1 of Protocol No. 12 to the Convention, the applicant complains of the conviction itself (application no. 42670/19).
THE COURT’S ASSESSMENT
16. Having regard to the connection between the subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
Complaint under Article 6 of the Convention on account of the lack of access to a court (application no. 37767/19)17. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine the complaints raised by the applicant under Articles 6 and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention (see paragraph 14 above) solely from the standpoint of Article 6 of the Convention, which guarantees the right of access to a court.
18. The general principles emerging from the Court’s case-law concerning the right of access to a court have been summarised in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-99, 5 April 2018). As regards legal aid, the Court reiterates that it may be acceptable to impose conditions on the granting of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings (see Steel and Morris v. the United Kingdom, no. 68416/01, § 62, ECHR 2005-II).
19. In the present case, the Court notes that the first legal aid lawyer representing the applicant at the trial stage asked to be relieved of his duties after the delivery of the judgment, when the applicant indicated that she wished to appeal against the conviction (see paragraph 5 above). The Court further observes that after four other appointed legal aid lawyers asked to be relieved from their duties (see paragraph 7. above), a new legal aid lawyer drafted an appeal against the applicant’s conviction. Nevertheless, it appears that the applicant did not agree with the terms of the appeal and requested the lawyer’s replacement (see paragraphs 8 and 9 above). The Court notes that, after six further legal aid lawyers appointed to represent the applicant asked to be relieved of their duties (see paragraph 10 above), by a decision of 8 January 2019 the Lisbon Criminal Court declared that the time‑limit to appeal had in the meantime expired in accordance with Articles 39 § 1, 42 § 3 and 44 § 1 of the Law on Legal Aid (see paragraph 11 above). The applicant nevertheless insisted on having a new lawyer appointed to represent her, not to challenge the decision at issue, but to lodge an appeal against her conviction. The Court notes that this request was eventually dismissed by the Lisbon Criminal Court on 5 February 2019 (see paragraph 13 above).
20. The Court takes the view that the decision of the Lisbon Criminal Court of 8 January 2019 (paragraph 11 above) ensured legal certainty and the proper administration of justice and did not amount to excessive formalism involving an unreasonable or particularly strict application of procedural rules leading to an unjustifiable restriction on the applicant’s access to a court (see Zubac, cited above, §§ 99 and 123). It notes in particular that the appeal was not, in fact, lodged because the applicant did not agree with the appeal prepared by the fifth legal aid lawyer who had been appointed to represent her (see paragraphs 8 and 9 above).
21. As to the dismissal of the applicant’s request for a new legal aid lawyer to be appointed after the decision of 8 January 2019, in the Court’s view there were no reasons to impose a further appointment since the appeal was doomed to be rejected in so far as the applicant’s intention was still to appeal against her conviction and not against the decision declaring that the time-limit to appeal had expired. It thus cannot be said that the refusal to appoint a further legal aid lawyer restricted the applicant’s right of access to court in a disproportionate manner contrary to Article 6 § 1 of the Convention.
22. In view of the foregoing, the Court concludes that these complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 a) and 4 of the Convention.
Complaint under Article 6 of the Convention on account of unfairness of criminal proceedings (application no. 42670/19)23. The Court will examine under Article 6 of the Convention alone the complaint raised by the applicant (see paragraph 15 above) relying on Articles 6, 10, 14 and Article 1 of Protocol No. 12 to the Convention (see Radomilja and Others, cited above, §§ 114 and 126).
24. In so far as the present case concerns the conviction of the applicant by the first-instance court (see paragraph 4 above), the Court is of the view that an appeal to the Court of Appeal was a remedy to be used for the purposes of Article 35 § 1 of the Convention.
25. Since the applicant failed to lodge an appeal, as described above (see paragraphs 8, 9 and 11 above), the Court concludes that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention.
26. Accordingly, this complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 12 October 2023.
Crina Kaufman Tim Eicke
Acting Deputy Section Registrar President
Appendix
List of cases
No.
Application no.
Case name
Introduction date
Applicant’s name
Year of birth
Place of residence
Nationality
Representative’s name
Location
1.
37767/19
da Conceição Lopes Ribeiro v. Portugal
10/07/2019
Maria Teresa DA CONCEIÇÃO LOPES RIBEIRO
1957
Porto
Portuguese
Inês MOURÃO
Porto
2.
42670/19
da Conceição Lopes Ribeiro v. Portugal
01/08/2019