Resolution CM/ ResDH (2011)143 [1]

Execution of the judgments of the European Court of Human Rights

Panasenko , Bogumil and Czekalla against Portugal

(Application No. 10418/03, judgment of 22 June 2008, final on 22 October 2008

Application No. 35228/03, judgment of 07 October 2008, final on 06 April 2009

Application No. 38830/97, judgment of 10 October 2002, final on 10 January 2003)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concern the breach of the right to a fair trial due to the ineffectiveness of the defence of the applicants (violations of Article 6, paragraphs 1 and 3c) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)143

Information on the measures taken to comply with the judgments in the cases of

Panasenko , Bogumil and Czekalla against Portugal

Introductory case summary

These cases concern a breach of the right to a fair trial due to the ineffectiveness of the applicants ’ defence (violations of Article 6§§1 and 3c).

In the Panasenko case, the ineffectiveness of the defence prevented the applicant (a Ukrainian national) from having his conviction examined on the merits before the Supreme Court. Although the applicant complained before the judge about his court-designated counsel and indicated his intention to appeal on points of law against a judgment of October 2003 sentencing him to 21 years ’ imprisonment, his appeal before the Supreme Court was declared inadmissible in 2004 on the ground of being out of time. The European Court noted that at the time of the appeal on points of law to the Supreme Court, which is a crucial moment in the proceedings, national courts did not react to the obvious failures of the defence, and neither did the Supreme Court itself when seized.

In the Bogumil case, the applicant (a Polish national) was assisted by a court-designated practising counsel in 2002 before the examining magistrate. The court-designated counsel was replaced in January 2003 by a lawyer admitted to the Bar, who resigned three days before the beginning of the proceedings (September 2003). A new court-designated counsel was appointed on the very day of the first hearing (18 September 2003) and could only study the file for a few hours before the opening of the proceedings.

In the Czekalla case, the court-designated counsel failed to comply with the formal requirements established under Section 412 of the Code of Criminal Proceedings when introducing an appeal before the Supreme Court. The applicant was therefore deprived of his right of appeal before that Court. The applicant (a German national) was sentenced in July 1995 to 15 years ’ imprisonment (increased by the Supreme Court in December 1996 to 21 years and then finally reduced in February 1997 to 18 years).

The European Court considered that the circumstances of the cases imposed upon the competent courts a positive obligation to ensure respect for the applicants ’ concrete and effective right to defence (§53 of the Panasenko judgment; §49 of the Bogumil judgment; §71 of the Czekalla judgment).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Panasenko

(10418/03)

-

3 000 EUR

-

3 000 EUR

Paid on 24/12/2008

Bogumil

(35228/03)

-

3 000 EUR

-

3 000 EUR

Paid on 03/07/2009

Czekalla

(38830/97)

-

3 000 EUR

10 120 EUR

13 120 EUR

Paid on 08/09/2003

P ayment of just satisfaction has been done in conditions that seem to be accepted by the applicants .

b) Individual measures

In all cases the European Court awarded just satisfaction in respect of non-pecuniary damages.

In the Panasenko case, the European Court considered that when an individual, as in the present case, has been convicted in proceedings vitiated by failures to comply with the requirements of Article 6 of the Convention, a new trial or reopening of proceedings at the applicant ’ s request represents in principle an appropriate means of providing redress for the violation found. However, the specific reparatory measures to be taken [ ... ] depend on the particular circumstances of the case and must be defined in the light of the judgment rendered by the Court, taking due account of the case-law. In the present case, concerning only the absence of legal assistance to the applicant, which had the consequence of preventing him from acceding to the Supreme Court, the examination of his appeal by that latter jurisdiction could represent an adequate means to redress the violation found (§78 of the judgment).

It is to be noted that Act No. 48/2007, amending the Code of Criminal Procedure, permits re-examination of domestic judgments, even those having the status of res judicata , following a judgment of the European Court finding a violation (Article 449). Under Article 450, the public prosecutor, as well as others including the person convicted, is entitled to ask for re-examination without any time-limit.

In the Bogumil case, the applicant was transferred to a prison in Poland in June 2005 and freed in December 2005.

In the Czekalla case, the applicant was transferred to a German prison in June 2000 and in March 2001 conditionally released.

In these circumstances, no further individual measure was considered necessary by the Committee of Ministers.

II. General measures

In 2002, the Portuguese Constitutional Court declared Section 412 of the Code of Criminal Procedure unconstitutional, inasmuch as the way it was interpreted in the Czekalla case led to dismissal of the appeal on formal grounds without the possibility of rectifying the omission.

All judgments have been translated into Portuguese and made available on the Internet site of the Cabinet of Documentation and Comparative Law ( ww w .gddc.pt ), which comes under the Prosecutor General of the Republic. They have also been broadly disseminated to the Judicial Service Commission and to the Bar, as well as included in the training activities for judges in the framework of the ongoing training on the case-law of the European Court .

III. Conclusions of the respondent state

The government considers that no other individual measure is required in these cases, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Portugal has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies