FOURTH SECTION

DECISION

Applications nos. 41069/23 and 41283/23
Luís Filipe COSTA DA SILVA against Portugal
and Bruno Miguel VALADARES E SOUSA against Portugal

The European Court of Human Rights (Fourth Section), sitting on 18 March 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 applications 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”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged unfairness of criminal proceedings brought against the applicants in which they were convicted and sentenced to nine years’ imprisonment. It also concerns their alleged lack of access to the Constitutional Court, which they further claim was not an impartial tribunal. They relied on Article 6 § 1 of the Convention.

2.  At the material time, the applicants were on duty at Lisbon Airport in their capacity as agents of the Immigration and Border Service (Serviço de Estrangeiros e Fronteiras). Following the death on 12 March 2020 of I.H., a Ukrainian citizen held in the airport’s short-term holding facility, criminal proceedings were instituted against them. They were charged and committed for trial at the Lisbon Central Criminal Court for aggravated homicide.

3.  On 10 May 2021, relying, inter alia, on the report of an autopsy which had been conducted on I.H.’s corpse, pursuant inter alia to Articles 144 (d) and 147 § 1 of the Criminal Code, the Lisbon Central Criminal Court convicted and sentenced the first applicant to nine years’ imprisonment and the second applicant to seven years’ imprisonment for aggravated physical assault causing death, following a recharacterisation of the facts.

4.  The applicants appealed against their conviction to the Lisbon Court of Appeal. The public prosecutor and I.H.’s widow, who was acting as an auxiliary prosecutor (assistente), also appealed.

5.  On 10 November 2021 the Lisbon Court of Appeal informed the applicants that the incriminating facts would be recharacterised as physical assault causing an illness under Article 144 (c) of the Criminal Code. In response, the applicants requested a new examination of I.H.’s corpse.

6.  On 7 December 2021 the Lisbon Court of Appeal rejected the request to have I.H.’s corpse re-examined and dismissed the applicants’ appeals. It then sentenced both applicants to nine years’ imprisonment for aggravated physical assault causing painful or permanent impairment.

7.  On 29 July 2022 the Supreme Court dismissed the applicants’ appeal for judicial review.

8.  On 28 September 2022 the Supreme Court dismissed a plea of nullity lodged by the first applicant against the decision of 29 July 2022.

9.  On 11 and 13 October 2022 respectively, the applicants appealed to the Constitutional Court, challenging the constitutionality of the interpretation of several legal provisions of the Code of Criminal Procedure and the Criminal Code on the basis of which they alleged their defence rights had been breached and they had been convicted.

10.  On 9 January 2023 the constitutional appeals were rejected by means of a summary decision of the Second Division of the Constitutional Court, sitting as a single judge, for non-compliance with the requirements set forth in Law no. 28/82 of 15 November 1982 (the Law of the Constitutional Court – hereinafter “Law no. 28/82”). The first applicant’s appeal was rejected on the grounds that the questions raised did not take into account the ratio decidendi of the Supreme Court’s decision of 28 September 2022 (see paragraph 8 above). As to the second applicant’s appeal, the Constitutional Court found that two of the questions raised did not concern the constitutionality of a specific legal provision or its interpretation and that the last one had not been argued before the Supreme Court. The applicants lodged an objection (reclamação) against the summary decision.

11.  By a judgment of 16 March 2023, the Constitutional Court, sitting as a three-judge bench (conferência), which included Judge P.M., upheld the summary decision. The applicants lodged a plea of nullity against the judgment. They argued that Judge P.M. lacked capacity to sit as judge, given that his tenure had come to an end in October 2021, maintaining that section 21(1) of Law no. 28/82 – according to which judges of the Constitutional Court are to remain in their positions until newly appointed judges take over – was contrary to the Constitution.

12.  On 11 July 2023 the Constitutional Court dismissed the applicants’ plea of nullity and their claim concerning the unconstitutionality of section 21(1) of Law no. 28/82. It referred to an earlier judgment (no. 386/2023) of the Third Division of the Constitutional Court on the same issue.

13.  Relying on Article 6 § 1 of the Convention, the applicants complained of the unfairness of the criminal proceedings brought against them, in that the domestic courts had not allowed them to effectively challenge the autopsy report on which their conviction had been based and the recharacterisation of the facts (see paragraphs 3 and 6 above). They further complained of a lack of access to the Constitutional Court due to excessive formalism and claimed that the bench of three judges of the Constitutional Court which had ruled on their objection was not an impartial tribunal given that the term of office of Judge P.M. had expired (see paragraphs 10-12 above).

THE COURT’S ASSESSMENT

14.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

1. Complaint under Article 6 § 1 of the Convention concerning the applicants’ alleged lack of access to the Constitutional Court

15.  As regards the applicants’ complaint concerning the lack of access to the Constitutional Court, the Court refers to general principles summarised in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-79, 5 April 2018). It also reiterates that, in view of the specific nature of an appeal to the Constitutional Court (see Dos Santos Calado and Others v. Portugal, nos. 55997/14 and 3 others, §§ 78-80, 31 March 2020), the conditions of access to that court may be more rigorous so as to achieve legal certainty and the proper administration of constitutional justice at the highest level of the judicial hierarchy. Furthermore, it notes that the Constitutional Court does not intervene except as a last resort, after questions of constitutionality have been examined by the lower courts within the judicial hierarchy (see Albuquerque Fernandes v. Portugal, no. 50160/13, § 75, 12 January 2021).

16.  In the present case, assuming that an appeal to the Constitutional Court was an effective remedy that had to be used for the purposes of Article 35 § 1 of the Convention (see Dos Santos Calado and Others, cited above, § 85), the Court notes that the applicants failed to lodge their constitutional appeals according to the requirements set forth in Law no. 28/82 (see paragraph 10 above; see also Dos Santos Calado and Others, cited above, §§ 44, 78 and 80).

17.  In the Court’s view, the decisions of the Constitutional Court (see paragraphs 10-11 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 (compare Albuquerque Fernandes, cited above, §§ 77-78).

18.  Accordingly, this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4 thereof.

2. Complaint under Article 6 § 1 of the Convention concerning the alleged breach of the right to a “tribunal established by law”

19.  As regards the question concerning the lack of impartiality of the Constitutional Court raised by the applicants, the Court considers that it rather concerns the issue as to whether the Constitutional Court was a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention, as this phrase covers not only the legal basis for the very existence of a “tribunal” but also the composition of the bench in each case (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 213 and 223, 1 December 2020, and Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000).

20.  The “law” referred to in this provision is therefore not only the legislation on the establishment and competence of judicial organs, but also any other provision of domestic law of which any breach would cause the participation of one or more judges in the examination of the case to be unlawful (see Ali Rıza and Others v. Turkey, nos. 30226/10 and 4 others, § 194, 28 January 2020). The Court therefore has jurisdiction to examine whether the domestic law has been complied with in this connection. However, since it is, in the first place, for the national courts to interpret domestic law, the Court may not question their interpretation unless there has been a flagrant violation of domestic law (see Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002, and Guðmundur Andri Ástráðsson, cited above, § 216).

21.  In the present case, the Court notes that in dismissing the applicant’s arguments related to the fact that Judge P.M.’s term of office had expired, the Constitutional Court relied on section 21(1) of Law no. 28/82, according to which judges of the Constitutional Court are to remain in their posts until newly appointed judges take over (see paragraph 12 above). There were therefore legal grounds for the participation of Judge P.M. in the three-judge bench of the Constitutional Court (contrast Gurov v. Moldova, no. 36455/02, § 37, 11 July 2006, and Oleksandr Volkov v. Ukraine, no. 21722/11, § 154, ECHR 2013). The Court further notes that the Constitutional Court relied on another judgment concerning the same issue and that there is nothing to suggest that that court’s interpretation of the matter was arbitrary or manifestly unreasonable or in blatant violation of the domestic law.

22.  It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention for being manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.

3. Complaint under Article 6 § 1 of the Convention concerning the fairness of the criminal proceedings

23.  Having regard to the conclusion in paragraphs 16 and 18 above, since the applicants failed to lodge their constitutional appeals in accordance with the procedural requirements set forth in Law no. 28/82, the Court concludes that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention in respect of the complaints under this head (compare Albuquerque Fernandes, cited above, § 83).

24.  Accordingly, this complaint must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 10 April 2025.

 Simeon Petrovski Tim Eicke
 Deputy Registrar President

Appendix

List of cases: