FOURTH SECTION

DECISION

Application no. 4608/17 Fernando Jorge REBELO DOS SANTOS against Portugal

The European Court of Human Rights (Fourth Section), sitting on 9 November 2021 as a Committee composed of:

Armen Harutyunyan, President, Jolien Schukking, Ana Maria Guerra Martins, judges, and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to the above application lodged on 30 December 2016,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Fernando Jorge Rebelo dos Santos, is a Portuguese national who was born in 1976. He is detained in Évora Prison. He was represented before the Court by Mr J.J. Ferreira Alves, a lawyer practising in Matosinhos.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 5 September 2012 criminal proceedings were initiated by the public prosecutor’s office at the Santa Maria da Feira Court to investigate the rape of a minor, C.G., which had allegedly occurred on the previous day.

4. On 23 November 2012 the applicant was given the status of defendant ( constituído arguido ) and was heard by the investigating judge ( juiz de instrução ). During the hearing, the applicant chose to exercise his right to remain silent.

5. On 5 February 2013 the police concluded its investigation.

6 . On 12 February 2013 the public prosecutor made a request to the investigating judge that, pursuant to Article 271 of the Code of Criminal Procedure (“the CCP”; see paragraph 43 below), C.G., as the victim, give statements for future use during the proceedings ( declarações para memória futura ). The request was granted.

7. On 22 February 2013 the applicant and his lawyer were summoned to attend C.G.’s hearing.

8. On 26 February 2013 the applicant’s lawyer requested access to the case file.

9 . On 27 February 2013 the investigating judge refused to grant the applicant access to the case file on the grounds that it was covered by the secrecy of criminal investigations ( segredo de justiça ).

10 . On 28 February 2013 C.G.’s hearing was adjourned because the applicant’s lawyer failed to appear.

11. On 7 March 2013 the applicant objected to C.G.’s statements being taken for future use, given that he had not been given access to the case file.

12. On 11 March 2013 the investigating judge dismissed the applicant’s objection as to C.G.’s hearing, noting that this was an investigative measure ( diligência de inquérito ) which did not replace the trial itself.

13. In a fax of 15 March 2013, the applicant’s lawyer requested access to the case file. He also argued that the hearing scheduled for that same day ought to be considered invalid because he had not yet had an opportunity to consult the case file.

14 . On the same day, the applicant’s lawyer did not attend the hearing held before the investigating judge at the Santa Maria da Feira Court (“the District Court”). However, the investigating judge noted that he had requested access to the case file. She agreed to adjourn the hearing and to grant him access to parts of the case file. She invited the applicant to indicate within five days the elements of the case file that he wished to consult.

15. On 10 April 2013 the investigating judge noted that the applicant’s lawyer had not yet indicated the elements of the case file that he wished to consult and that she was waiting for him to do so.

16. On 15 April 2013 the applicant’s lawyer requested the investigating judge to grant him access to the entire case file.

17 . On 19 April 2013 the investigating judge granted the applicant access to certain elements of the file, such as the victim’s statements to the police, the forensic examinations and the documentary evidence extracted from the victim’s and her mother’s mobile telephones.

18. On 22 April 2013 the applicant sent a request to the investigating judge, stating that he had been notified that a new hearing was scheduled for 30 April 2013, but that this was also the date on which he had been authorised to consult the case file; and he would not therefore have sufficient time to analyse the file before C.G.’s hearing. He also sought leave to remove the case file from the registry of the District Court for consultation ( confiança do processo ) in the days before the hearing.

19 . On 23 April 2013 the public prosecutor rejected his request to remove the case file from the registry of the District Court on the grounds that it was covered by the secrecy of criminal investigations.

20. On 24 April 2013 the applicant’s lawyer sought leave to consult the entire case file before the hearing at which C.G. was due to be questioned, scheduled for 30 April 2013.

21 . In a letter of 29 April 2013, addressed to the investigating judge, the applicant’s lawyer stated that he had been given access to C.G.’s statements to the police but insisted that he should also have access to the entire case file.

22 . On 30 April 2013 the investigating judge opened the hearing at 3.50 p.m. She noted that all the persons summoned to attend the hearing for the purpose of recording C.G.’s statements for future use during the proceedings were present, except for the applicant’s lawyer. The investigating judge decided to appoint a defence counsel to represent the applicant during the hearing, on the grounds that this was the third time that his lawyer was absent from the hearing. The defence counsel waived the option of consulting the file before the hearing. C.G. was then heard by the investigating judge and her statements recorded and added to the case file. The hearing was declared closed at 5.30 p.m.

23. On 10 May 2013 the applicant was charged with aggravated rape ( violação agravada ).

24. On an unknown date the applicant once again contested the validity of C.G.’s hearing, arguing that he had not had access to the case file and that the hearing had not been necessary, and maintaining that the victim should still be heard in court.

25 . On 13 May 2013 the investigating judge dismissed the applicant’s objection, noting that he had been given the opportunity to consult part of the case file (which he had refused to do) and that recording statements for future use in the case of the rape of a minor was standard practice, and was required by law.

26. On 20 June 2013 the case was remitted to the District Court for trial.

27 . On 21 August 2013 the applicant contested the public prosecutor’s charges, holding that the alleged victim had fabricated the story. He requested that C.G. be submitted to a new psychological assessment, that Facebook retrieve and submit to the court her data from its website for the years 2012 and 2013, that her school reports be added to the evidence, and that the analysis of the mobile telephones of the victim and her mother, as requested by the public prosecutor, be carried out with the assistance of an acquaintance of the applicant who was an expert in mobile telephones. He requested that the court summon and hear evidence from seven witnesses and that the victim be heard in court so that he could cross-examine her.

28 . On 27 September 2013 the District Court agreed to add the victim’s school results to the case file and to question most of the witnesses proposed by the applicant. The District Court dismissed the applicant’s requests regarding information from the victim’s Facebook account, on the grounds that those were not essential for establishing the truth. It also rejected his request to hear the victim in court. The District Court postponed until the trial its decision on whether it would be necessary to submit C.G. to a new psychological assessment.

29 . On an unknown date the applicant requested the District Court to call and hear evidence from two additional witnesses who would be able to contest an alleged comment by the victim that he was always armed.

30 . On 18 October 2013 the District Court dismissed the applicant’s request to have summoned to the trial two more witnesses who could comment on his use of a firearm, because it did not consider this relevant to establishing the truth.

31 . On an unknown date the applicant requested the District Court to call and hear evidence from two additional witnesses who had allegedly noticed that the victim’s mother had a cheerful demeanour after one of the hearings.

32 . On 6 November 2013 the District Court dismissed the applicant’s request to have summoned to the trial two more witnesses who would testify about the demeanour of the victim’s mother after one of the hearings. The court noted that this request was inadmissible, in that it did not refer to cross-examination concerning any statement and was irrelevant to ascertaining the truth of the case. The District Court also dismissed the applicant’s request to have two other witnesses summoned, namely an acquaintance who was an expert in mobile telephones and the doctor who had drafted the forensic report. The court noted that the applicant could request an examination of the mobile telephones if he so wished and that it was unnecessary to interrogate the doctor who had signed the report, considering that the report itself already contained sufficient relevant information.

33. The trial took place on 1 October, 29 October, 5 November, 14 November, 26 November, 12 December and 17 December 2013. During the trial the applicant exercised his right to silence. The District Court heard evidence from several witnesses and read out the statements made by C.G. during the investigation (see paragraph 22 above).

34. By a judgment of 9 January 2014 the District Court convicted the applicant of aggravated rape and sentenced him to six years’ imprisonment; it also ordered him to pay 20,000 euros (EUR) plus interest to the victim in respect of non-pecuniary damage.

35. On 21 January 2014 the applicant lodged an appeal with the Porto Court of Appeal against that decision.

36. On 8 October 2014 the Porto Court of Appeal quashed the lower court’s decision on the basis that it had failed to respond to one of the applicant’s arguments regarding his request that the victim undergo a further psychological assessment (see paragraph 28 above) and returned the case to the Santa Maria da Feira District Court.

37 . On 16 January 2015 the District Court delivered a new judgment, in which it convicted the applicant for aggravated rape and sentenced him to six years’ imprisonment, and also ordered him to pay EUR 20,000 plus interest to the victim in non-pecuniary damages. The District Court replied to the request from the Porto Court of Appeal, noting that it was unnecessary to submit the victim to a second psychological assessment, in view of the integrity and reputation of the institution that had performed the initial assessment. The District Court also noted that the applicant’s defence strategy had been to put forward numerous requests in respect of the evidence in the case, in order to delay the proceedings. The District Court held that the conviction was based on a variety of evidence. Such evidence included statements by the victim, her mother, and neighbours and close friends of both families, as well as by the inspector-general of the regional police who had questioned the victim and had collected evidence on the day of the incident; cross-examinations in the courtroom of the witnesses summoned to the hearings; psychological assessments of the victim; forensic examinations; and documentary evidence, such as text messages between the applicant and the victim’s mother before and after the incident.

38 . On 19 February 2015 the applicant appealed against that decision to the Porto Court of Appeal. In his statement of appeal he submitted that the lower court’s decision had relied on insufficient evidence – mainly the statements by the victim, whom he had not been allowed to cross-examine – and that the investigating judge should have pursued certain investigative measures requested by him. Under Article 412 § 3 (c) of the CCP the applicant requested a reassessment of part of the evidence ( renovação da prova ), namely the victim’s statements of 30 April 2013 and whether it was possible to manipulate a message on a mobile telephone. He also requested that a hearing be held before the Court of Appeal.

39 . On 19 October 2015, on the basis of Article 417 § 7 (b) of the CCP, the rapporteur dealing with the case at the Court of Appeal granted the request for a hearing, but dismissed the request that the evidence be reassessed. It does not transpire from the case file that the applicant challenged that decision before the three-judge bench ( conferência ) of the Court of Appeal, as provided for by Article 417 § 8 of the CCP.

40. The hearing took place on 22 June 2016. The applicant was represented by his lawyer.

41 . By a judgment of 13 July 2016, notified to the applicant on 18 July 2016, the Porto Court of Appeal upheld the judgment of the District Court. The Porto Court of Appeal noted that the psychological report, signed by various doctors and specialists who had treated the victim, strongly urged the domestic authorities not to request the victim to repeat the facts in court, in case this would traumatise her further. The Porto Court of Appeal also added that the first-instance court had complied with constitutional and European standards on prevention of the re-victimisation of under-aged victims of sexual violence. Moreover, the Porto Court of Appeal alluded to the large amount of evidence in the case in addition to the victim’s statements. With regard to the investigating judge’s refusal to pursue certain investigative measures requested by the applicant, the Porto Court of Appeal clarified that the District Court had accepted some of the applicant’s requests and dismissed those that were irrelevant for establishing the truth.

42. On 13 September 2016 the applicant lodged a constitutional appeal, which was declared inadmissible on the ground that the provision he challenged as being unconstitutional had not been applied in his case.

43 . The relevant provisions of the CCP provide as follows:

Article 86

“...

The investigating judge, on a request from the defendant, the assistant to the public prosecutor, or the victim, and after hearing the public prosecutor, may determine, by a decision that is not amenable to appeal, that the case file should be subject to judicial secrecy during the investigation phase, where he or she believes public access to the facts of the case would harm the rights of the parties to the proceedings. ...”

Article 271

“1. In the event that a witness is seriously ill or is travelling abroad, inevitably preventing him or her from being heard in trial, including in cases concerning victims of trafficking in human organs or human trafficking, or victims of crimes against their right to sexual self-determination, the investigating judge, at the request of the public prosecutor, the defendant, the private prosecutor [ assistente ] or the civil parties to the proceedings, may conduct the hearing during the investigation phase, with the intention that that hearing shall be taken into account during the trial.

2. In the case of offences against the freedom and sexual self-determination of a minor, it is mandatory for the [relevant authority] to hear the victim during the investigation phase if he or she has not yet reached the legal age of majority.

3. The public prosecutor, the defendant, the legal representative of the defendant and the lawyers of the private prosecutor [ assistente ] and the civil parties to the proceedings shall be informed of the day, time and place of the hearing so that they may attend, while the presence of the public prosecutor and the legal representative of the defendant is mandatory.

...”

Article 412 § 3 (c)

“3. When contesting the factual basis of the court’s decision, the appellant shall specify:

...

(c) the evidence to be reassessed.”

Article 417 § 7 (b) and § 8

“7. Where the appeal cannot be decided on by way of summary procedure, the rapporteur shall decide, following a preliminary examination:

...

(b) whether there is evidence to be reassessed and witnesses who should be summoned.

8. A complaint ( reclamação) may be lodged to the three-judge bench ( conferência ) against decisions made by the rapporteur under paragraphs 6 and 7.”

Article 421 § 2

“The Public Prosecutor’s Office, the defence counsel, the representatives of the private prosecutor [ assistente ] and the civil parties shall be summoned to the hearing. ”

Article 430 §§ 1 and 2

“1. When it is necessary to reassess both the facts and the law, the Court of Appeal shall agree to reassess evidence if the grounds for annulment referred to in Article 410 § 2 have been verified and if there are reasons to believe that such annulment would lead to the case being referred back to the first-instance court.

2. A decision which agrees or refuses to reassess evidence shall be final and shall determine the terms and extent to which the evidence produced at first instance may be reassessed.”

COMPLAINTS

44. Relying on Article 6 §§ 1, 2 and 3 (d) of the Convention, the applicant complained that the criminal proceedings against him before the Santa Maria da Feira District Court had violated his right to a fair trial.

THE LAW

45. The applicant relied on Article 6 §§ 1, 2 and 3 (d) of the Convention, the relevant parts of which read:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”

46. Under Article 6 §§ 1 and 3 (d) of the Convention, the applicant alleged that he had not been allowed to question C.G. when she was heard by the investigating judge. He also complained that C.G. had not been heard during the trial phase and that, as a result, he had not had an opportunity to cross-examine her. Additionally, still from the standpoint of Article 6 §§ 1 and 3 of the Convention, the applicant complained about the fact that the investigating judge had refused to grant him access to the case file before the hearing at which the victim made her statements.

47. The Court reiterates that Article 6 § 3 (d) of the Convention is a specific aspect of the right to a fair hearing guaranteed by Article 6 § 1, which must be taken into account in any assessment of the fairness of the proceedings (see Asani v. the former Yugoslav Republic of Macedonia , no. 27962/10, §§ 32-37, 1 February 2018).

48. The relevant principles and the applicable test developed in the Court’s case-law on the compatibility with Article 6 §§ 1 and 3 (d) of proceedings in which statements made by a prosecution witness who had not been present and questioned at the trial were used as evidence were set out in Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-09, ECHR 2015) and in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 118-19, ECHR 2011).

49. The Court reiterates in particular that the use as evidence of statements obtained at the stage of a police inquiry and judicial investigation is not in itself inconsistent with Article 6 §§ 1 and 3 (d), provided that the rights of the defence have been respected. As a rule, these rights require that defendants be given an adequate and proper opportunity to challenge and question a witness against them – either when that witness is making his or her statements or at a later stage of the proceedings (see Schatschaschwili , cited above, § 105, with further references). Having regard to the special features of criminal proceedings concerning sexual offences, Article 6 § 3 (d) cannot be interpreted as requiring in all cases that questions be put directly by the accused or his or her lawyer, through cross-examination or by other means (see S.N. v. Sweden , no. 34209/96, §§ 47 and 52, ECHR 2002 ‑ V). This is even more so in cases involving a minor, in which the domestic courts must also protect the right to respect for the private life of the alleged victim (see Vronchenko v. Estonia , no. 59632/09, § 56, 18 July 2013, and Pereira Cruz and Others v. Portugal , nos. 56396/12 and 3 others, §§ 188 ‑ 89, 26 June 2018).

50. In the instant case, the Court notes at the outset that the domestic authorities decided to take C.G.’s statements during the investigation phase to prevent any further traumatisation (see paragraph 41 above).The Court notes that this is not only common practice, but even a legal requirement under Article 271 of the CCP (see 43 above). There were good reasons for C.G. not to give evidence during the trial, given that she was a minor at the relevant time and that the psychological report on the victim’s mental health had recommended that she should not be heard in court, as this would have involved a risk of further traumatisation (see paragraph 41 above; see also D.T. v. the Netherlands (dec.), no. 25307/10, § 48, 2 April 2013; and Y. v. Slovenia , no. 41107/10, § 106, ECHR 2015).

51. Having regard to the domestic courts’ findings (see paragraphs 37 and 41 above) the Court considers that C.G.’s statements for future use (see paragraphs 6 and 22 above), were not the sole or decisive evidence against the applicant. However, considering the nature of the charges, the Court accepts that they carried significant weight in the domestic courts’ decision to convict the applicant . As to whether there were sufficient counterbalancing factors to compensate for the potential handicap caused to the defence as a result of the admission of the untested witness evidence (see Al-Khawaja and Tahery , cited above, § 147), there is nothing to suggest to the Court that the applicant or his defence lawyer were prevented from effectively challenging the evidence presented at trial, including the statements by C.G. As to the pre-trial hearing, the Court observes that the applicant was present at the pre-trial hearing and was duly represented by an appointed lawyer on that particular occasion (see paragraph 22 above; and, conversely, Lučić v. Croatia , no. 5699/11, § 82, 27 February 2014) because his own lawyer had failed to attend C.G.’s hearing on the two previous occasions (see paragraphs 10 and 14 above). It notes that the applicant’s lawyer declined to attend the hearing because he had not been given access to the entire case file (see paragraph 21 above). However, the investigating judge had already adjourned the hearing in order to grant the applicant’s lawyer sufficient time to consult part of the case file (see paragraph 14 above). He was not given access to the entire case file because it was covered by judicial secrecy, a fact of which he was already aware and which is normal practice in cases of this nature (see paragraphs 9, 19 and 43 above). However, the Court notes that he had access to relevant elements of the case file before the hearing, such as C.G.’s statements to the police (see paragraph 21 above) and that the statements C.G. made before the investigating judge had been recorded (see paragraph 22 above; and see Schatschaschwili , cited above, § 127, with further references). Lastly, nothing indicates that the applicant was prevented from communicating with his defence counsel, instructing him and discussing with him how this stage of his defence was to be conducted.

52 . Further, with regard to the remaining proceedings, the domestic courts examined the weight, coherence and consistency of C.G.’s statements and linked them to other available evidence, such as psychological and psychiatric reports drafted by independent entities and forensic and documentary evidence (see paragraphs 37 and 41 above). Lastly, the defence was able to call several defence witnesses and examine them effectively; the testimony of those witnesses was also duly considered by the domestic courts. In fact, the applicant lodged multiple requests with the District Court throughout the proceedings to have additional evidence included in the case file (see paragraphs 27, 28, 29 and 31 above). All of these requests were duly considered by the domestic courts and several were granted (see paragraphs 28, 30, 31 and 32 above). Adequate reasons were provided by the domestic courts for those requests that were not granted (see paragraphs 28, 32, 37 and 41 above). Lastly, the applicant was represented by a lawyer throughout the entire proceedings, and he was afforded the opportunity to give his own version of the events and to cast doubt on the credibility of the absent witness (see Schatschaschwili , cited above, § 131, with further references). Viewing the fairness of the proceedings as a whole, the Court finds that the above-mentioned counterbalancing measures taken were sufficient. It therefore concludes that the applicant was afforded the protection of his rights safeguarded by Article 6 §§ 1 and 3 (d) of the Convention.

53. In view of the foregoing, this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

54. Relying on Article 6 §§ 1 and 3 of the Convention, the applicant complained about the District Court’s decisions dismissing some of his requests for additional evidence. He also complained about the overall assessment of the evidence by that court and about the fact that he had been sentenced to imprisonment, which he alleged was contrary to Article 6 § 1 taken alone or in conjunction with Article 14 of the Convention. Relying on Article 6 § 2 of the Convention, the applicant further complained that his right to remain silent had been wrongly interpreted by the District Court, since it was pointed out in the judgment that the applicant had not given any explanations or version of the facts.

55. In so far as the applicant complained under Article 6 § 1 of the Convention about the assessment of evidence and the outcome and unfairness of the domestic proceedings, the Court reiterates that it is not a court of fourth instance and it is not its function to deal with alleged errors of fact or law committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts (see Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010). Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review (see, among many other authorities, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015). Turning to the present case, as the Court observed above (see paragraph 52 above), it appears that C.G’s statements were not the sole or decisive evidence against the applicant (see paragraphs 37 and 41 above). Moreover, the applicant had an opportunity to request that further evidence be examined in the case, even if some of his requests were dismissed because they were deemed unnecessary for deciding the case (see paragraphs 28, 32, 37, and 41 above). Regarding his complaint about the District Court’s interpretation of his decision to remain silent during the trial, the Court notes that it does not follow from the domestic courts’ judgments that they interpreted the applicant’s silence in any particular way, and that this complaint is unsubstantiated. Accordingly, the Court concludes that there is no appearance of a violation of Article 6 §§ 1, 2 and 3 of the Convention. This complaint must therefore be dismissed as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

56. Still from the standpoint of Article 6 §§ 1 and 3 of the Convention, the applicant alleged that the District Court had lacked impartiality because it was composed of two female judges and one male judge. He also argued that the replies given by C.G. when she was questioned at the pre-trial hearing had been suggested to her by the investigating judge, and complained about the fact that the initial prosecutor, a man, had been replaced during the trial phase by a female prosecutor. The Court notes however that the applicant failed to raise any of these complaints before the Court of Appeal. The Court finds that the domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention, since the applicant failed to raise before the competent domestic authorities, either in form or in substance and in accordance with the applicable procedural requirements, the complaints that were subsequently made to the Court.

57. Relying on Article 6 § 1 of the Convention, the applicant complained that he had not been heard in person by the Court of Appeal. The Court, for its part, notes that he made no such request in his statement of appeal (see paragraph 38 above). In fact, as provided for by Article 412 § 3 (c) of the CCP, the applicant requested only that the victim’s statements of 30 April 2013, and also the finding as to whether a mobile telephone message could be manipulated, be reassessed (see paragraphs 38 and 43 above). Besides, it appears that, while his request to have the evidence reassessed was dismissed, the rapporteur dealing with the case at the Court of Appeal agreed, under Article 417 § 7 (b) of the CCP, to hold a hearing. It does not transpire from the case file that the applicant challenged that decision ( reclamação ) before the three-judge bench at the Court of Appeal, an option available to him under Article 417 § 8 of the CCP. Thus, the rapporteur’s decision not to have evidence reassessed became final pursuant to Article 430 § 2 of the CCP and the applicant was represented at the hearing by the lawyer, in accordance with Article 421 § 2 of the CCP (see paragraph 43 above). The Court therefore takes it as established that the applicant did not ask to appear in person before the Court of Appeal. It must therefore be considered that he unequivocally waived that right (compare Hermi v. Italy [GC], no. 18114/02, §§ 73-76, ECHR 2006 ‑ XII, and, mutatis mutandis , Marcolino de Jesus v. Portugal (dec.), no. 2388/15, § 49, 1 June 2021; and contrast Moreira Ferreira v. Portugal , no. 19808/08, §§ 29-35, 5 July 2011). Accordingly, the Court concludes that there is no appearance of a violation of Article 6 § 1 of the Convention. This complaint must therefore be dismissed as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

58. Lastly, under Article 2 of Protocol No. 7 to the Convention, the applicant complained that the Porto Court of Appeal had failed to re-examine the facts of the case. However, the Court notes that the Porto Court of Appeal did examine the facts and relevant evidence of the case (see paragraph 41 above). It follows that there is no appearance of a violation of Article 2 of Protocol No. 7 to the Convention and that this complaint must therefore be dismissed as manifestly ill-founded in accordance with 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 2 December 2021.

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Ilse Freiwirth Armen Harutyunyan Deputy Registrar President