Information Note on the Court’s case-law 69

November 2004

Roseiro Bento v. Portugal (dec.) - 29288/02

Decision 30.11.2004 [Section II]

Article 35

Article 35-1

Six-month period

Final domestic decision

Doubts over the effectiveness of a remedy; remedy which could be considered effective

Exhaustion of domestic remedies

Effective domestic remedy

Possibility of requesting a court to reconsider its decision

The applic ant was prosecuted on a charge of proffering insults in the exercise of his duties as mayor. The criminal limb of the proceedings was covered by an amnesty. The claimant applied for the proceedings to be continued, in order to allow for examination of his request for compensation in respect of the damage he claimed to have sustained. The first-instance court awarded him a sum in compensation. The applicant appealed against that judgment. Under a new law, the appeal was admissible only if the amount of the d isputed compensation exceeded a certain sum. As that sum had not been reached in the case in issue, the applicant lodged an appeal, arguing that the legal provision concerned was unconstitutional. The day before he lodged his appeal, the Constitutional Cou rt ruled for the first time that the new legal provision was not unconstitutional. The judgment was published in the Official Gazette one month later. Referring to that judgment, the appeal court concluded that the applicant’s appeal was inadmissible. The applicant then filed a constitutional complaint alleging the unconstitutionality of the disputed text, but the Constitutional Court upheld its previous conclusions on the question, given in its judgment in the similar case mentioned above.

Admissible under Article 10, after examination on the Court’s own motion of compliance with the six-month time-limit: the Court reiterated that if there is a doubt as to the effectiveness of a domestic remedy, the point must be submitted to the courts. In the present case, when the applicant lodged an appeal which raised the question of the constitutionality of the new admissibility rule on his appeal, the Constitutional Court had not yet publicly given judgment on the matter. Accordingly, the applicant could not be c riticised for having lodged an appeal which raised an issue that had not yet been ruled on. His subsequent constitutional appeal was also understandable, since at that point the Constitutional Court had given only one judgment on the relevant question. Fin ally, if the Constitutional Court had at that stage accepted the applicant’s argument as to unconstitutionality, the appeal court would then have been obliged to examine the other grounds of appeal, in particular the alleged infringement of freedom of expr ession, which was the complaint contained in his application. In short, despite the legal inadmissibility of the applicant’s appeal, the “final decision” in this case was indeed the Constitutional Court’s judgment. Furthermore, the Government submitted tha t the applicant could have presented his arguments concerning Article 10 of the Convention before the court of first instance and that that court would then have been able to amend its decision taking those arguments into account. However, the option of as king the authorities to reconsider a decision they had taken could be considered an effective remedy, and the Government’s objection that domestic remedies had not been exhausted was therefore dismissed.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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