Communicated on 5 March 2018
FOURTH SECTION
Application no. 3145/15
José Miguel FISCHER RODRIGUES CRUZ DA COSTA
against Portugal
lodged on 5 December 2014
SUBJECT MATTER OF THE CASE
The case concerns the applicant’s unsuccessful applications for prison leave. In particular, on 6 June 2013 the Porto Tribunal for the Execution of Penalties dismissed his application on the grounds that it was not guaranteed that the applicant, if granted the leave, would not evade the execution of the remaining sentence and would behave in a socially responsible manner without committing further crimes, that the granting of the leave at the given phase of the sentence was not compatible with the requirement of general prevention and that the applicant’s legal situation was not yet fully settled given the existence of other proceedings against him.
No appeal lay against this decision under the law, which was confirmed to the applicant by several court instances. Had the application been granted, however, the public prosecutor would have been entitled to lodge an appeal.
The applicant turned to the Constitutional Court, which gave a decision on the merits of the case to the applicant’s detriment on 15 July 2014.
QUESTIONS tO THE PARTIES
1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case? In particular, did the applicant possess a “right” for the purposes of Article 6 § 1 of the Convention (see Boulois v. Luxembourg [GC], no. 37575/04, §§ 90 to 94, ECHR 2012)?
2. If Article 6 § 1 was applicable, was the applicant’s right to access to a court respected, given that the only appeal possible in such cases is apparently that of the public prosecutor in case the application was granted? Is this procedural asymmetry compatible with the principle of “equality of arms” inherent in the notion of a fair hearing for the purposes of Article 6 § 1 of the Convention?
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