Ferreira Alves v. Portugal (no. 3)

Information Note on the Court’s case-law No. 98

June 2007

Ferreira Alves v. Portugal (no. 3) - 25053/05

Judgment 21.6.2007 [Section II]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Adversarial trial

Failure to communicate to the applicant decisions and documents sent by the public prosecutor to the court and a note from the judge to the court of appeal: violation

Facts: The applicant is estranged from his wife and was granted a right of access to their daughter. The mother subsequently sought to have of that right withdrawn. Acting in the interest of the child, as required by law, an official from the prosecution service had a social inquiry and a medical examination carried out. The applicant challenged that official's participation as he had been removed from an earlier case concerning him. The applicant was not informed of the position adopted by the prosecution official, who preferred not to take a decision but to await instructions from his superior.

The Attorney-General informed the court that the official concerned had been taken off the case at the time because the applicant had instituted criminal proceedings against him. The proceedings were no longer pending, however, so there was no longer any reason to keep him off the case. He appended documents to his reply. The applicant was again not informed of these developments. The court referred to them, however, when rejecting the applicant's challenge.

The applicant asked to be informed of the interventions of the prosecution service. The court replied that this was not permitted under the Portuguese system.

The document in which the prosecution service commented on the content of the medical reports and invited the court to summon experts to the hearing (which it did) was again not communicated to the applicant. The court ordered a new social inquiry. It also decided that the forthcoming hearing would not be taped. The applicant appealed. As authorised by law, the Court of First Instance sent a note to the Court of Appeal reaffirming the merits of its decision. The note was not sent to the applicant. The Court of Appeal rejected the appeal. The applicant's right of access was eventually restricted but not withdrawn.

Law: (a) In the documents it had submitted to the court, which had not been sent to the applicant, the prosecution service addressed important substantive as well as procedural issues. From the point of view of adversarial hearings, little did it matter whether or not the prosecutor was in fact a “party” if he was able, especially by the authority vested in him, to influence the court's decision to the applicant's disadvantage.

(b) The note the Court of First Instance had sent to the Court of Appeal had not been sent to the applicant either. In it the court reaffirmed the reasons for the decision against which the applicant had appealed: it commented on the merits of the applicant's appeal, thereby suggesting, albeit implicitly, that the higher court reject it; in short, the purpose of the note had been to influence the appeal court's decision. It was true that the note had presented no new submissions, but it was for the parties alone to decide whether a document called for comment, no matter what actual effect the note might have had on the appeal court judges.

Conclusion: violation (unanimously): see also the judgment Antunes and Pires v. Portugal, no 7623/04, 21 June 2007.

Article 41 – Non-pecuniary damage: finding of violation sufficient.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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