Resolution ResDH(2001)12 concerning the judgment of the European Court of Human Rights of 9 June 1998 in the case of Teixeira de Castro against Portugal

(Adopted by the Committee of Ministers on 26 February 2001 at the 741 st meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Teixeira de Castro case delivered on 9 June 1998 and transmitted the same day to the Committee of Ministers under former Article 54 of the Convention;

Recalling that the case originated in an application (No. 25829/94) against Portugal, lodged with the European Commission of Human Rights on 24 October 1994 under former Article 25 of the Convention by Mr Francisco Teixeira de Castro, a Portuguese national, and that the Commission declared admissible the complaint that the applicant did not have a fair hearing before criminal courts since he had been incited by police officers acting under cover to commit an offence for which he had subsequently been convicted mainly on the basis of the statements of these police officers;

Recalling that the case was brought before the Court by the Commission on 16 April 1997 and by the Government on 17 June 1997;

Whereas in its judgment of 9 June 1998, the Court:

- held, by eight votes to one, that there had been a violation of Article 6, paragraph 1, of the Convention;

- held, unanimously, that it was unnecessary to examine whether there had been a violation of Article 3 of the Convention;

- held, unanimously, that it was unnecessary also to examine the case under Article 8 of the Convention;

- held, by eight votes to one, that the respondent State was to pay the applicant, within three months 10 000 000 escudos in respect of pecuniary and non-pecuniary damage, 1 800 000 escudos in respect of costs and expenses, less 19 801,70 French francs, to be converted into escudos at the rate applicable on the date of settlement and that simple interest at an annual rate of 10 % would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed, unanimously, the remainder of the applicant's claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of former Article 54 of the Convention;

Having invited the Government of the respondent State to inform it of the measures which had been taken in consequence of the judgment of 9 June 1998, having regard to Portugal's obligation under former Article 53 of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State gave the Committee information about the measures taken to prevent new violations of the same kind as that found in the present judgment (this information appears in the appendix to this resolution);

Having satisfied itself that on 4 September 1998, within the time-limit set, the Government of the respondent State paid the applicant the sums provided for in the judgment of 9 June 1998,

Declares, after having taken note of the information supplied by the Government of Portugal, that it has exercised its functions under former Article 54 of the Convention in this case.

Appendix to Resolution ResDH(2001)12

Information provided by the Government of Portugal during the examination of the Teixeira de Castro case by the Committee of Ministers

In order to remedy the applicant's individual situation, the Portuguese Public Prosecutor's Office has requested that his conviction be deleted from his criminal record. The tribunal of Famalicão granted his request on 7 April 2000.

Furthermore, in order to ensure that the use of undercover agents does not unduly interfere with the right to fair trial guaranteed by the European Convention on Human Rights, Article 59 of Legislative Decree No. 15/93 on the prevention of drug-trafficking has been amended by Act No. 45/1996 of 3 September 1996. According to the added paragraph 3 to Article 59, the use of such persons is subject to a court's approval, which has to be given within 5 days and for a specific period.

The Government is of the opinion that, in view of the supra-legal status of the Convention, as interpreted by the European Court of Human Rights, in Portuguese law (Constitutional Court judgments Nos. 345/99 of 15 June 1999 and 533/99 of 12 October 1999), the Portuguese courts will exercise this supervision and adapt their interpretation of the Code of Criminal Procedure (in particular of Article 126) in such a way as to avoid new violations similar to that found in the Teixeira de Castro case.

In order to facilitate this adaptation, the judgment of the European Court of Human Rights has been published in the Revista Portuguesa de Ciência Criminal (RPCC 10/2000) and also disseminated to the authorities concerned, including the police.

The Government of Portugal is of the opinion that with these measures Portugal has complied with its obligations under former Article 53 of the Convention.