FOURTH SECTION
DECISION
Application no. 31946/21
Ricardo Jorge FERREIRA DA SILVA MACEDO
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 14 January 2025 as a Committee composed of:
Tim Eicke, President,
Ana Maria Guerra Martins,
András Jakab, judges,
and Simeon Petrovski, Deputy Section Registrar,
Having regard to:
the application (no. 31946/21) 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”) on 17 June 2021 by a Portuguese national, Mr Ricardo Jorge Ferreira da Silva Macedo (“the applicant”), who was born in 1960, lives in Alenquer and was represented by Mr V. Carreto, a lawyer practising in Torres Vedras;
the decision to give notice of the application to the Portuguese Government (“the Government”), represented by their Agents, Mr. R. Bragança de Matos, Public Prosecutor, and Mr Manuel Aires Magriço, also Public Prosecutor;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the alleged violation of the applicant’s right under Article 5 § 3 of the Convention to be brought promptly before a judge following his arrest.
2. On 5 April 2016, at 9.45 a.m., the applicant was arrested, together with thirteen other persons, on suspicion of aggravated drug trafficking and conspiracy, passive corruption, and money laundering, pursuant to an arrest warrant issued on 11 March 2016 by the Lisbon public prosecutor’s office of the Central Criminal Department for Investigation and Prosecution (hereinafter the “DCIAP”). He was then taken to the Lisbon Judicial Prison.
3. On 7 April 2016 the arrestees were brought to the Central Criminal Investigation Court in Lisbon.
4. At 7.59 a.m. on the same day the applicant appeared before the investigating judge at the Central Criminal Investigation Court in Lisbon. An ex officio defence lawyer was appointed to represent him. After the applicant presented his identity documents and described his personal situation, he was informed of the facts under investigation and the reasons for his arrest, as well as of his rights and duties. The applicant’s hearing was then suspended at 8.05 a.m.
5. The investigating judge questioned the thirteen arrestees continuously between 7 and 12 April 2016 between the hours of 9 a.m. and 9 p.m.
6. On 12 April 2016, at 11.12 a.m., the applicant’s hearing was resumed. He was brought from the Lisbon Judicial Prison and questioned by the investigating judge of the Central Criminal Investigation Court concerning the facts imputed to him. The applicant challenged a request by the prosecutor to have him placed in pre‑trial detention. The hearing in respect of the applicant ended at 7.50 p.m. He was the last person in the group of arrestees to be interviewed.
7. On 13 April 2016, at 8.30 p.m., the investigating judge approved the applicant’s detention and ordered that he be placed in pre-trial detention in view of the gravity of the charges, the risk of his interfering with the investigation and the risk of his absconding.
8. On 6 May 2021 the Lisbon Civil Court dismissed a non-contractual liability action which the applicant had brought against the State in respect of the damage arising from the allegedly excessive time taken by the investigating judge to review his detention. The court found that the element of unlawfulness necessary for such liability was not present in the case as the applicant had been brought before the investigating judge within the 48-hour time-limit for doing so under national law.
9. On 19 July 2016 the applicant was released from pre-trial detention. He was acquitted by the Central Criminal Investigation Court in Lisbon on 4 June 2021.
10. Relying on Article 5, the applicant complained of the length of time which elapsed between his detention on 5 April 2016 and its review by the investigating judge on 12 April 2016 (see paragraphs 2 and 6 above).
THE COURT’S ASSESSMENT
11. 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, 20 March 2018), finds it appropriate to examine the applicant’s complaint under Article 5 § 3 of the Convention.
12. It is common ground between the parties that the applicant was arrested on 5 April 2016 (see paragraph 2 above) for the purposes indicated in Article 5 § 1 (c) of the Convention. It follows that he enjoyed the right under Article 5 § 3 to be brought promptly before a judge or other officer authorised by law to exercise judicial power. The general principles relating to the interpretation of a “prompt review” are summarised in the cases of Aquilina v. Malta ([GC], no. 25642/94, §§ 47-50, ECHR 1999-III); McKay v. the United Kingdom ([GC], no. 543/03, §§ 31-40, ECHR 2006-X), and İpek and Others v. Turkey (nos. 17019/02 and 30070/02, § 36, 3 February 2009). The Court has on several occasions reiterated that any period in excess of four days is prima facie too long (see Rigopoulos v. Spain (dec.), no. 37388/97, ECHR 1999-II, and Gaspar v. Portugal, no. 3155/15, § 47, 28 November 2017).
13. The Court reiterates, however, that each case has to be examined according to its special features in order to determine whether the authorities have complied with the requirement of promptness (see De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 52, Series A no. 77, and Brogan and Others v. the United Kingdom, 29 November 1988, § 59, Series A no. 145-B). It also reiterates that exceptional circumstances can justify a longer time elapsing before a person arrested or detained is brought before a judicial authority (see Rigopoulos, cited above; H.Y. and Hü.Y. v. Turkey, no. 40262/98, § 137, 6 October 2005; and Parlak v. Turkey, no. 22459/04, § 33, 19 July 2011).
14. In the present case, the applicant was arrested on 5 April 2016 at 9.45 a.m. together with thirteen other persons. He was brought before the investigating judge on 7 April 2016, at 7.59 a.m., two days after his arrest. He presented his identity documents and was then informed of his rights and duties (see paragraphs 2-5 above). The Court notes that although he was informed of the reasons for his arrest on 7 April 2016, he was not questioned about the facts imputed to him or given an opportunity to exercise his defence rights until 12 April 2016. Moreover, it was only on the latter day that he was able to present his arguments with regard to his detention and the request of the prosecutor’s office to have him placed in pre-trial detention (see paragraph 6 above). It thus transpires that the merits of the applicant’s detention (see Aquilina, cited above, § 47) were only reviewed seven days after his arrest, which is prima facie contrary to the Court’s well-established case-law (see, a contrario, Gaspar, cited above, § 52). It remains to ascertain whether there were any special difficulties or exceptional circumstances which could justify such delay.
15. The Court notes the complexity of the criminal investigation in question, in view of the facts being investigated and the number of persons arrested. Furthermore, it transpires from the documents provided by the parties that the investigating judge of the Central Criminal Investigation Court in Lisbon conducted the interviews of the group of suspects continuously, including through the weekend, with long interrogation sessions (see paragraph 5 above). It also appears that he was diligent in the organisation of the interrogations. Thus, the length of the applicant’s detention before the review was a direct result of the number of arrestees and the time required to adequately conduct interrogations of all the suspects.
16. In view of those exceptional circumstances, the Court concludes that the time which elapsed between placing the applicant in detention and bringing him before the investigating judge cannot be said to have breached the requirement of promptness within the meaning of Article 5 § 3 of the Convention.
17. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 February 2025.
Simeon Petrovski Tim Eicke
Deputy Registrar President