Information Note on the Court’s case-law 238
March 2020
Dos Santos Calado and Others v. Portugal - 55997/14, 68143/16 and 78841/16
Judgment 31.3.2020 [Section III]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Requirement to lodge an appeal with the Constitutional Court in all cases raising an issue of unconstitutionality of a legal rule or the interpretation thereof: inadmissible
Failure to lodge an objection before a three-judge committee of the Constitutional Court against a summary decision declaring a constitutional appeal inadmissible, given by a single judge: inadmissible
Article 6
Constitutional proceedings
Article 6-1
Impartial tribunal
Presence, on the three-judge committee of the Constitutional Court examining an objection against an admissiblity decision, of the judge who had given the decision: no violation
Facts – The applicants in all four applications had lodged appeals with the Constitutional Court, which declared them inadmissible in a summary decision given by a single judge, on the grounds that they did not satisfy the conditions laid down in the Law on the organisation and operation of the Constitutional Court. One of the applicants did not submit an objection against that decision with a three-judge committee.
The applicants complained of a violation of their right of access to a court. The applicants in two of the applications also alleged a lack of impartiality on the part of the three-judge committee.
Law – Article 35 § 1:
Any appeal lodged with the Constitutional Court for the purposes of a concrete review of constitutionality had to raise an issue of constitutionality with regard to a legal rule or a court’s interpretation thereof.
In any case brought against Portugal raising an issue of unconstitutionality with regard to a legal rule or the interpretation thereof, the applicant had to have lodged an appeal with the Constitutional Court in the proper manner for the purposes of exhausting domestic remedies as required by Article 35 § 1 of the Convention. However, a constitutional appeal concerning a judicial decision was bound to fail and could not be taken into account for the purposes of calculating the six-month time-limit under Article 35 § 1.
In the present case the applicant’s appeal to the Constitutional Court had been declared inadmissible by a summary decision adopted by a single-judge formation. That decision had become final as the applicant had not challenged it by means of an objection to a committee of three judges.
It was true that an objection was not an appeal strictly speaking, since it was a means of challenging the decisions taken by the rapporteur of a judicial bench, with a view to having the matter reconsidered. However, the Court considered that this mechanism would have allowed the applicant to challenge the decision in question.
Firstly, objections were submitted to a three-judge committee of the Constitutional Court, made up of the judge rapporteur who had given the summary decision in question and two other judges, including either the President or Vice-President of the Constitutional Court. The rapporteur could deliver the summary decision without consulting his or her peers. Hence, they were not consulted unless the person concerned lodged an objection with the committee.
Secondly, the inadmissibility of an appeal could be upheld only by a unanimous vote of the three‑judge committee. In the absence of unanimity the matter was referred to the plenary division.
These observations were sufficient for the Court to consider that an objection lodged with the three‑judge committee of the Constitutional Court against the summary decision in question constituted an effective remedy within the meaning of Article 35 § 1 of the Convention in respect of the complaint of lack of access to a court. As the applicant had omitted to lodge an objection with the committee of three judges, the Government’s objection should be allowed.
Conclusion: inadmissible (failure to exhaust domestic remedies).
Article 6 § 1:
The applicants called into question only the objective impartiality of the three-judge committee of the Constitutional Court, on account of the presence on that committee of the judge rapporteur who had given the decision declaring their constitutional appeals inadmissible.
The principles derived from the Court’s case-law concerning objective impartiality were not applicable to the present case, given the nature of the task of the three-judge committee in hearing objections. That committee was the body responsible for giving a final decision on the admissibility of a constitutional appeal. The summary decision by the rapporteur was therefore just a preliminary stage, and that decision only became final if the person concerned did not lodge an objection, that is, if he or she did not request the rapporteur to reconsider the decision, this time alongside the other two judges making up the committee. The procedure before the judge rapporteur was therefore an integral part of the procedure for deciding on the admissibility of constitutional appeals. Hence, the three-judge committee was not a fully fledged autonomous entity called upon to determine the matter at issue.
Conclusion: inadmissible (manifestly ill-founded).
The Court also held unanimously that there had been a violation of Article 6 § 1 on account of the lack of access to a court with regard to two of the applications, as the Constitutional Court had displayed excessive formalism in declaring the constitutional appeals inadmissible for failure to satisfy the statutory conditions.
Furthermore, the Court held unanimously that there had been no violation of Article 6 § 1 concerning one of the applications, as a finding that an appeal was inadmissible on the grounds that it did not raise an issue of unconstitutionality regarding the interpretation of a legal rule did not impair the very essence of the right of access to a court.
Article 41: EUR 3,300 in respect of non-pecuniary damage to the applicants in both applications
(See also, regarding the effectiveness of remedies, Traina v. Portugal (dec.), 59431/11, 21 March 2017; Mendrei v. Hungary (dec.), 54927/15, 19 June 2018, Information Note 220. Regarding the impartiality of a court, see San Leonard Band Club v. Malta, 77562/01, 29 July 2004, Information Note 66; Warsicka v. Poland, 2065/03, 16 January 2007, Information Note 93; Driza v. Albania, 33771/02, 13 November 2007, Information Note 102; Kayasu v. Turkey, 64119/00 and 76292/01, 13 November 2008, Information Note 113; Pereira da Silva v. Portugal, 77050/11, 22 March 2016; and Ramos Nunes de Carvalho e Sá v. Portugal [GC], 55391/13 et al., 6 November 2018, Information Note 223).
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