THIRD SECTION
DECISION
Application no. 83622/17
João RIBEIRO JOSÉ
against Portugal
The European Court of Human Rights (Third Section), sitting on 7 July 2020 as a Committee composed of:
Helen Keller, President,
María Elósegui,
Ana Maria Guerra Martins, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above application lodged on 12 December 2017,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr João Ribeiro José, is a Portuguese national who was born in 1945 and is detained in Belas. He was represented before the Court by Mr V. Carreto, a lawyer practising in Torres Vedras.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 24 August 2006 the applicant was arrested and questioned by an investigating judge regarding allegations of sexual abuse of his granddaughter (a minor) and other family members. On the same day, the investigating judge remanded the applicant in custody.
4. On 5 December 2006 the applicant requested the opening of adversarial investigation proceedings (for details of this stage of criminal proceedings, see Correia de Matos v. Portugal [GC], no. 56402/12, § 39, 4 April 2018). He solicited medical examinations, claiming that he had suffered from erectile dysfunction since the age of 49 and could not, therefore, have committed the alleged crimes.
5. On 28 April 2010 the Forensic Institute (Instituto de Medicina Legal) submitted its report.
6. On 13 July 2011 the Portimão District Court convicted the applicant on seventy-seven counts of sexual abuse and sentenced him to fifteen years’ imprisonment. It found, inter alia, that there was no evidence that the applicant suffered from impotence or erectile dysfunction.
7. On an unspecified date, the applicant appealed against the judgment to the Évora Court of Appeal, seeking to have the previous conviction declared null and void and contesting the number of counts of sexual abuse imputed to him.
8. On 20 March 2012 the Évora Court of Appeal quashed the judgment and remitted the case to the first-instance court for a new hearing.
9. The Portimão District Court held a new hearing. On 4 June 2013 it sentenced the applicant to fifteen years’ imprisonment.
10. Following an appeal by the applicant, on 25 March 2014 the Évora Court of Appeal convicted the applicant on two counts of sexual abuse and sentenced him to nine years’ imprisonment.
11. On an unspecified date, the applicant appealed to the Supreme Court.
12. On 29 January 2015 the Supreme Court declared the appeal inadmissible and on 18 June 2015 dismissed the applicant’s request to have the Évora Court of Appeal judgment declared partially null and void.
13. A constitutional appeal lodged by the applicant with the Constitutional Court was declared inadmissible on 10 December 2015.
14. On an unknown date the applicant lodged a civil action with the Faro Court against the Portuguese State under the State Liability Act (ação de responsabilidade civil extracontratual), seeking compensation for pecuniary and non-pecuniary damage on account of the allegedly incorrect assessment of the case by the Évora Court of Appeal in its judgment of 25 March 2014 and the length of the criminal proceedings.
15. On 17 November 2016 the Faro Court dismissed the claim. Concerning the allegedly incorrect assessment of the case, the court contended that the legal requirements for holding the State liable had not been fulfilled. It held that the judgment of the Évora Court of Appeal had not been quashed by another judicial decision and that that court had interpreted the law in line with the applicable legal provisions. The Faro Court also noted that the length of the proceedings was normal, taking into consideration the fact that the applicant had requested that the case be examined at four levels of jurisdiction. It held as follows:
“... It is not possible to identify a judicial error in the previous judgments, let alone a gross one. Moreover, in the previous proceedings, the competent courts decided against declaring null and void the decision alleged to be damaging to the applicant. And it is important to emphasise that the civil courts are not the competent judicial body to declare the decisions in question null and void ...”
16. On an unknown date the applicant appealed to the Évora Court of Appeal.
17. On 14 September 2017 the appeal was dismissed.
COMPLAINTS
18. The applicant complained about the length of the criminal proceedings brought against him. He also alleged that his right to a fair trial had been breached, complaining that the Évora Court of Appeal had wrongly assessed the case without hearing evidence from him. He relied on Article 6 § 1 of the Convention.
THE LAW
19. The applicant complained of the excessive length of the criminal proceedings brought against him. He also complained that the Évora Court of Appeal had convicted him without hearing him. He relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
20. Concerning the complaint about the allegedly excessive length of the proceedings, the Court observes that the applicant did not apply for an order to expedite the criminal proceedings as provided by Articles 108 and 109 of the Code of Criminal Procedure. Such an application would constitute an effective remedy under Article 35 § 1 of the Convention, enabling a person to request the judge to take the necessary steps, such as fixing a date for the hearing or closing the judicial investigation (see Tomé Mota v. Portugal (dec.), no. 32082/96, ECHR 1999-IX). Accordingly, the Court considers that the applicant has failed to exhaust the domestic remedies available to him and that the complaint under Article 6 § 1 of the Convention concerning the length of the proceedings must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
21. As to the alleged unfairness of the criminal proceedings and the lack of any hearing before the Évora Court of Appeal, the Court notes that the applicant did not submit either the decision of the Évora Court of Appeal of 25 March 2014 or any other decision rendered during the criminal proceedings brought against him. This complaint is thus unsubstantiated and must be rejected pursuant to 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 10 September 2020._p_2}
Olga ChernishovaHelen Keller
Deputy RegistrarPresident
Full & Egal Universal Law Academy