VIEIRA OLIVEIRA v. PORTUGAL

FOURTH SECTION

DECISION

Application no. 36894/23
Rúben Alexandre VIEIRA OLIVEIRA
against Portugal

The European Court of Human Rights (Fourth Section), sitting on 26 March 2024 as a Committee composed of:

 Tim Eicke, President,
 Armen Harutyunyan,
 Ana Maria Guerra Martins, judges,
and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 36894/23) 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 2 October 2023 by a Portuguese national, Mr Rúben Alexandre Vieira Oliveira (“the applicant”), who was born in 1983, is detained in Lisbon and was represented by Mr V. Parente Ribeiro, a lawyer practising in Lisbon;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  On 16 February 2022 criminal proceedings were initiated against the applicant for aggravated drug trafficking and participation in an organised criminal group by the Central Criminal Department for Investigation and Prosecution. During the investigation the applicant’s telephone was tapped as per a decision of the investigating judge at the Central Criminal investigating Court.

2.  On 25 June 2022 the applicant was questioned by the investigating judge who, on the same day, decided to remand him in custody.

3.  On 14 February 2023 the public prosecution office brought charges against the applicant for the above-mentioned offences.

4.  On 28 July 2023 the Lisbon Court of Appeal dismissed an appeal lodged by the applicant in which he alleged that the investigating judge was the same judge who had authorised the interception of his telephone calls and data during the criminal investigation and was therefore biased against him and lacked impartiality and independence.

5.  On 29 September 2023 the investigating judge issued a decision to remit the applicant for trial (despacho de pronúncia).

6.  From 27 June 2022 to 1 October 2023 the media published several news items regarding the applicant’s detention, the alleged drug trafficking and his assets.

7.  Relying upon Article 6 of the Convention, the applicant complained of the unfairness of the proceedings, lack of impartiality of the investigating judge and a breach of his right to be presumed innocent owing to the influence of the media on the criminal case brought against him. The applicant further complained that information from his criminal file had been leaked to the media by the criminal investigators, the public prosecutor, the investigating judge or the clerks working on the case.

8.  Relying on Article 3 of the Convention, the applicant further alleged that the information imparted by the media concerning his case had damaged his reputation.

THE COURT’S ASSESSMENT

9.  Regarding the applicant’s complaints brought under Article 6 of the Convention on account of the unfairness of the proceedings and the lack of impartiality of the investigating judge (see paragraph 7 above), which are to be examined from the standpoint of Article 6 § 1 of the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126; 20 March 2018), the Court reiterates that when analysing this type of complaint, the role of the Court is to examine the proceedings as a whole (see Beuze v. Belgium [GC], no. 71409/10, §§ 120-21, 9 November 2018).

10.  The Court observes that, in the present case, the last judicial decision is the decision of 29 September 2023 of the investigating judge to remit the applicant for trial (see paragraph 5 above), which is not a final judgment (in this regard, see Saraiva de Carvalho v. Portugal, no. 15651/89, § 37, 22 April 1994).

11.  Accordingly and without prejudice to the applicant’s possibility of bringing new proceedings before this Court in the event of a conviction by the domestic courts and after exhausting domestic remedies, the Court, in view of the fact that the proceedings giving rise to the issues under the Convention are still pending, finds the complaints under Article 6 § 1 of the Convention to be premature (see Fenech and Agius v. Malta (dec.), nos. 23243/13 and 23343/13, 5 January 2016). The complaints must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

12.  As regards the complaint concerning the alleged breach of the applicant’s right to presumption of innocence, which is to be examined under Article 6 § 2 of the Convention, the Court reiterates that in a democracy, high‑profile cases will inevitably attract comment from the media. However, that cannot mean that any media comment whatsoever will inevitably prejudice a defendant’s right to a fair hearing or will breach his right to be presumed innocent (see Čivinskaitė v. Lithuania, no. 21218/12, § 122 and §§ 137-39, 15 September 2020, and Akay v. Turkey (dec.), no. 34501/97, 19 February 2002).

13.  Regard being had to the Portuguese case-law in cases of violation of the secrecy of justice, for instance, the judgment of the Court of Appeal of Lisbon of 21 September 2021 (proceedings no. 7940/20.9T9LSB-A.L1-5), the Court observes in the first place that there is a private interest of the person concerned, related to the protection of his private life, reputation and presumption of innocence. Therefore, that individual can act as an auxiliary prosecutor (assistente) in violation of secrecy of justice proceedings. However, in the present case, the applicant did not exhaust all domestic remedies, in particular by means of filing a criminal complaint against the criminal investigators, the public prosecutor, the investigating judge or the clerks working on the case (see paragraph 7 above) and, eventually, by submitting a request to act as an auxiliary prosecutor, and did not claim that such remedies would have been ineffective.

14.  Even assuming that the above mentioned remedies would have been ineffective, the Court finds, in the light of the material in its possession, that there is no evidence of leaks by the authorities of confidential information from the file concerning the criminal investigation proceedings that were initiated against the applicant (see paragraph 1 above).

15.  This complaint is thus manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

16.  Regarding the alleged breach of the applicant’s right to reputation on account of the information imparted by the media (see paragraphs 6 and 8 above), which is to be examined from the standpoint of Article 8 of the Convention, the Court is of the view that even assuming that the information imparted by the media concerning the investigation proceedings against the applicant falls within the concept of “private life” within the meaning of Article 8 of the Convention, the applicant has not exhausted any remedy in this respect at domestic level against the media he accuses of breaching his right to reputation, in particular by means of lodging a civil claim or even filing a criminal complaint against them (see Azinas v. Cyprus [GC], no. 56679/00, § 41, ECHR 2004 III, and Vučković and Others v. Serbia [GC], no. 17153/11, §§ 72-80, 25 March 2014).

17.  Since the applicant failed to do so, the Court concludes that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention. It follows that this complaint must be rejected pursuant to 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 18 April 2024.

 Crina Kaufman Tim Eicke
 Acting Deputy Registrar President