HENRIQUES DE SOUSA v. PORTUGAL

FOURTH SECTION

DECISION

Application no. 13174/23
Hermenegildo Marques HENRIQUES DE SOUSA
against Portugal

The European Court of Human Rights (Fourth Section), sitting on 22 April 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. 13174/23) 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 13 March 2023 by a Portuguese national, Mr Hermenegildo Marques Henriques de Sousa (“the applicant”), who was born in 1970, lives in Guarda, and was represented by Ms A. Maria, a lawyer practising in Coimbra;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns three unsuccessful applications for review of criminal proceedings (recurso extraordinário de revisão) lodged by the applicant with the Supreme Court. The applicant invokes Articles 5, 6 and 13 of the Convention.

2.  By a judgment of the Coimbra Criminal Court of 17 March 2021, the applicant was convicted of three counts of aggravated sexual assault of A., his stepdaughter, who was 14 years old at the material time. He was sentenced to six years’ imprisonment. He did not appeal against his conviction and started serving his sentence on 22 September 2021.

3.  On 10 November 2021 A. sent a letter to the Coimbra Criminal Court, stating that there had been a misunderstanding and requesting the withdrawal of the criminal complaint. Relying on that letter, the applicant, who was represented by a lawyer, lodged an application for review (recurso extraordinário de revisão) with the Supreme Court with a view to having the criminal proceedings reopened. In a judgment of 17 February 2022, the Supreme Court refused to reopen the proceedings on the grounds that the judicial review of a conviction based on the falsity of evidence required a previous decision establishing that falsity, as provided for in Article 449 § 1 (a) of the Code of Criminal Procedure (“the CCP”).

4.  On 8 February 2022 A. sent the Coimbra Criminal Court a second letter stating that she had lied throughout the trial because she had not wanted the applicant and her mother to be together.

5.  On 13 April 2022 the applicant’s representative lodged a criminal complaint on his behalf against A. for false testimony. The public prosecutor discontinued the criminal proceedings on the grounds that A. was not criminally liable because of her age at the material time as prescribed in Article 9 of the Portuguese Criminal Code.

6.  The applicant lodged a new application for review with the Supreme Court, which, on 14 July 2022, was likewise rejected for non-compliance with Article 449 § 1 (a) of the CCP.

7.  On 20 July 2022 the applicant requested that the public prosecutor at the Coimbra Family Court initiate juvenile court proceedings against A. for false testimony. His request was dismissed in accordance with section 28(2)(b) and (3) of Law no. 166/99 of 14 September 1999 on the grounds that A. had reached the age of majority on 9 March 2022.

8.  On 1 February 2023 a third application for review lodged by the applicant was rejected by the Supreme Court on the same grounds as before (see paragraphs 3 and 6 above).

9.  Relying on Article 5 of the Convention, the applicant submitted that his right to liberty had been violated owing to the lack of a procedural remedy that would allow him to prove his innocence. Under Article 6 of the Convention, he complained that his applications for review had been rejected by the Supreme Court. Lastly, under Article 13 of the Convention, the applicant complained of the lack of a domestic remedy to prove that the victim was lying.

THE COURT’S ASSESSMENT

10.  The Court reiterates that the requirements contained in Article 35 § 1 of the Convention concerning the exhaustion of domestic remedies and the six months’ period, as applicable at the material time, are closely interrelated (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016). In that context, only remedies which are normal and effective may be taken into account as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006). In particular, an application for a retrial or similar extraordinary remedies cannot, as a general rule, be taken into account for the purpose of applying Article 35 of the Convention (see Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004‑II, with further references).

11.  In the present case, in so as far as the applicant complained of a breach of his right to liberty under Article 5 of the Convention, the Court considers that neither the criminal proceedings brought against A., nor the applications for review lodged by the applicant with the Supreme Court, the most recent of which was rejected on 1 February 2023 (see paragraphs 3, 5-8 above), can be taken into account for the purpose of determining whether the six-month time-limit was complied with. It further notes that, while the present application was lodged on 13 March 2023, the applicant had been deprived of his liberty on 22 September 2021 following the judgment of the Coimbra Criminal Court of 17 March 2021 against him (see paragraph 2 above), that is to say, more than six months previously.

12.  It follows that this part of the complaint was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

13.  The Court reiterates that, in principle, Article 6 of the Convention does not apply to applications for the reopening of criminal proceedings, given that someone who requests the reopening of his or her case and whose sentence has become final is not “charged with a criminal offence” within the meaning of that Article. However, should such an extraordinary remedy lead to a full reconsideration of the merits of the case or amendment of the final judgment, Article 6 § 1 of the Convention would become applicable (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 60-67, 11 July 2017).

14.  Turning to the present case, the Court notes that the Supreme Court, in its decisions of 17 February 2022, 14 July 2022 and 1 February 2023 (see paragraphs 3, 6 and 8 above), limited itself to verifying whether the conditions for reopening the criminal proceedings were met, ruling in particular on the compliance of the applications for the reopening of the proceedings with the requirements set forth in Article 449 § 1 (a) of the CCP. Therefore, the Supreme Court did not carry out a re-examination on the merits and its decisions cannot be regarded as an extension of the original proceedings (see, conversely, Moreira Ferreira, cited above, § 72)

15.  It follows that Article 6 of the Convention does not apply to the proceedings in question. Therefore, the complaint concerning the applications for review is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention.

16.  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 Article 13 of the Convention (see paragraph 9 above) from the standpoint of Article 6 § 1 of the Convention (right of access to a court).

17.  The relevant principles on the right of access to a court were summarised in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-79, 5 April 2018).

18.  The Court notes at the outset that the applicant did not lodge an appeal against his conviction with the Court of Appeal, in particular to challenge A.’s credibility or the assessment of the evidence (see paragraph 2 above).

19.  Concerning the criminal complaint against A., the Court observes that it was lodged against a person who was not criminally liable because of her age at the material time (see paragraph 5 above). Therefore, a criminal complaint, when used, was not an effective remedy in the present case in context of the applicant’s complaint under this head.

20.  On the other hand, when the applicant requested that the public prosecutor of the Coimbra Family Court initiate juvenile court proceedings against A. for false testimony, A. had already reached the age of majority on 9 March 2022 (compare paragraphs 5 and 7 above). That being so, nothing prevented the applicant to lodge a criminal complaint anew for false testimony.

21.  The applicant was represented by a lawyer who was responsible for the technical aspects of the case.

22.  Furthermore, the outcome of both the criminal complaint and the application for juvenile court proceedings to be brought against A. for false testimony was foreseeable (see paragraphs 5 and 7 above).

23.  In the Court’s view, the decisions at issue (see paragraphs 5 and 7 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, §§ 93‑95).

24.  Accordingly, this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 May 2025.

 Simeon Petrovski Tim Eicke
 Deputy Registrar President