FOURTH SECTION
DECISION
Application no. 58367/18
P.V. and Lavos
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 28 February 2023 as a Committee composed of:
Armen Harutyunyan, President,
Anja Seibert-Fohr,
Ana Maria Guerra Martins, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the application (no. 58367/18) 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 7 December 2018 by two Portuguese nationals, Mr P.V. and Mr Joaquim Lavos (“the applicants”), who were born in 1961 and 1941, live in Cinfães and Aveiro and were represented by Mr J. Moutinho, a lawyer practising in Porto;
the decision to grant the first applicant anonymity in accordance with Rule 47 § 4 of the Rules of the Court;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns criminal proceedings and a civil claim for damages brought against the two applicants, who were CEOs of the company M.C., S.A. Both sets of proceedings were brought in connection with unpaid social security contributions in the period 1997-2000.
2. On 6 April 2006 the applicants were convicted of the embezzlement of social security contributions and sentenced to eight months’ imprisonment, suspended. The applicants appealed, and on 29 November 2006 the Coimbra Court of Appeal upheld the conviction and ruled that the criminal court should examine the civil claim for damages which had been lodged by the relevant social security office.
3. The applicants made their defence submissions regarding the civil claim, referring to the statement of defence (contestação) which they had submitted in the course of the criminal proceedings. In the relevant parts, those submissions read as follows:
“... the company had already paid a joint deposit of 750 euros (EUR) to the tax office and to social security, of which the former took the lion’s share...
... the company proposed a transfer in lieu of payment jointly with the company F., which was first accepted by the tax office but was subsequently refused ...”
4. On 11 July 2013 the applicants lodged an application for review (recurso de revisão) with the Supreme Court concerning their conviction (see paragraph 2 above). They invoked, in particular, the facts that:
(i) some of the salaries had not in fact been paid to workers, therefore the applicants had not retained the corresponding social contributions;
(ii) the company had paid a deposit of EUR 750 to the tax office and to social security which should have been used by the latter in order to pay the debt;
(iii) social security had not accepted the company’s proposal of a transfer in lieu of payment.
5. On 5 February 2015 the Supreme Court refused to grant a review of the criminal conviction (see paragraph 2 above) owing to the lack of new facts. The court noted that the applicants, in their statement of defence prior to their trial (see paragraph 3 above), had already raised the same set of facts as they subsequently submitted to it.
6. On 6 December 2016 the Aveiro District Court ordered the applicants to pay, respectively, EUR 248,360 and EUR 79,753 to social security in respect of the pecuniary damage it had sustained, plus interest. On 16 January 2017 the applicants challenged the decision in the Porto Court of Appeal, invoking, inter alia, the alleged failure of the first-instance court to analyse all the issues which they had raised in their defence submissions regarding the civil claim (see paragraph 3 above), and arguing in particular that:
(i) the level of compensation should have been lowered due to the incorrect use of the deposit by social security;
(ii) social security had been at fault for refusing to accept the company’s proposal of a transfer in lieu of payment, which should have led to the partial or total exculpation of the applicants;
(iii) certain monthly contributions had never been due to be paid, owing to belated payments of salaries and redundancies.
7. On 13 June 2018 the Porto Court of Appeal dismissed the appeal on the ground that the applicants had not raised those arguments in their defence submissions (see paragraph 3 above), which was why the Aveiro District Court had not addressed them in its reasoning. It found that the applicants had omitted to formulate any argument in relation to the alleged deposit, and instead had merely commented in a casual manner on its existence and its distribution by the tax office and social security between themselves, without submitting a proper statement of facts or raising legal arguments in that respect. As to the second question, the court considered that it had been completely absent as a legal argument from the statement of defence since the applicants had failed to raise a specific legal argument, but merely declared that the company, jointly with another company, had presented a proposal to the tax office for a transfer in lieu of payment which could have solved the problem. The Porto Court of Appeal concluded that the applicants had neither properly described the facts nor sufficiently characterised the legal issues at stake. In addition, even if those technical faults had not been present, the related facts had not been proven and the applicants had not appealed in that respect. Regarding the third argument, the Porto Court of Appeal observed that it had been analysed in detail by the first-instance court.
8. The applicants complained under Article 6 § 1 and Article 13 of the Convention of the unfairness of the proceedings, of the denial of a review of their criminal conviction (see paragraphs 4 and 5 above) and of the lack of analysis of the arguments which they had put to the Porto Court of Appeal (see paragraph 6 above). They also alleged the existence of a contradiction between the decision of the Supreme Court of 5 February 2015 (see paragraph 5 above) and the decision of the Porto Court of Appeal of 13 June 2018 (see paragraph 7 above), and argued that the reasoning of those two decisions had been inadequate. They submitted that the Supreme Court had refused to grant a review on the grounds that there were no new facts, finding that the alleged new facts had already been mentioned in the applicants’ statement of defence, whereas the Porto Court of Appeal had ruled that those facts had not been alleged before. The applicants contended that, ultimately, the facts in question had not been analysed by any domestic court.
9. The applicants also complained under Article 6 § 1 of the Convention of the excessive length of the proceedings.
10. Lastly, the applicants complained under Article 1 of Protocol No. 1 to the Convention that the – in their view excessive – sum they had been ordered to pay to social security breached their right to peaceful enjoyment of their possessions.
THE COURT’S ASSESSMENT
Complaint under Article 6 § 1 of the Convention11. 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 applicants’ complaints brought under Article 6 § 1 of the Convention (fairness of the proceedings and access to a Court), and Article 13 of the Convention, from the standpoint of Article 6 of the Convention (access to a court) taken alone (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 86, 29 November 2016).
12. The relevant principles on access to a court were summarised in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-79, 5 April 2018).
13. In so far as the applicants complained of the fact that their arguments (see paragraphs 4 and 6 above) had been analysed by neither the Supreme Court nor the Porto Court of Appeal (see paragraph 8 above), the Court notes that the former refused to grant a review of the applicants’ conviction for embezzlement because it considered that the alleged new facts could not be regarded as such given that they had already been mentioned in the applicants’ statement of defence in the criminal proceedings (see paragraph 3 above). The Porto Court of Appeal, in contrast, did not rule that those facts were new but found that, with the exception of the third matter which had been examined by the first-instance court, the applicants had failed to submit a proper description of the facts or to demonstrate any legal effect deriving from them, or even to raise the legal issues at stake (see paragraphs 4 and 7 above). Therefore, the Court sees no contradiction between the two decisions as to the novelty of those facts.
14. The applicants were represented by a lawyer who was responsible for the technical aspects of the description of facts and the indication of the legal issues concerned, not only at the appeal stage (compare paragraphs 3 and 6 above). Since at issue was a civil claim for damages, it was foreseeable to them that the burden of laying out the facts and formulating the relevant legal issues upon which the domestic courts would base their decisions laid with the applicants.
15. In the instant case, it does not appear that the Court of Appeal failed to examine the legal issues which were properly raised by the applicants (see paragraph 7 above).
16. In the Court’s view, the decision of the Porto Court of Appeal, in so far as it pointed to the responsibility of persons bringing civil claims to lay out the basis for those claims, 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 applicants’ access to a court.
17. Accordingly, these complaints are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.
Remaining complaints18. Concerning the complaint of excessive length of the proceedings (see paragraph 8 above), the Court notes that the applicants did not apply for an order to expedite the criminal proceedings as provided for by Articles 108 and 109 of the Code of Criminal Procedure, which enables a person to ask the judge to take the relevant necessary steps, such as fixing a date for the hearing or closing the judicial investigation, although such an application constitutes an effective remedy under Article 35 § 1 of the Convention (see Tomé Mota v. Portugal (dec.), no. 32082/96, ECHR 1999-IX). Furthermore, they failed to bring a non-contractual liability action against the State (see Valada Matos das Neves v. Portugal, no. 73798/13, § 106, 29 October 2015). Accordingly, this complaint must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
19. As to the alleged breach of the applicants’ right to peaceful enjoyment of their possessions owing to the excessive sum they were ordered to pay to social security (see paragraph 10 above), in view of the findings above in paragraphs 13-17, the Court concludes that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention, since the applicants failed to raise this allegation before the domestic courts in accordance with the applicable technical and procedural requirements. Thus, this complaint must also be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 March 2023.
Crina Kaufman Armen Harutyunyan
Acting Deputy Registrar President