Communicated on 8 January 2016

FOURTH SECTION

Application no. 41099/14 Tracey Jayne MOLAMPHY against Portugal lodged on 31 May 2014

STATEMENT OF FACTS

The applicant, Ms Tracey Jayne Molamphy , is a British national who was born in 1971 and lives in Leigh. She is represented before the Court by Ms V. Costa Ramos, a lawyer practising in Lisbon.

A. The circumstances of the case

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

1. Background to the case

On 28 August 1995, while on holiday in Portugal, the applicant was arrested on suspicion of having committed criminal offences: uttering (putting into circulation) counterfeit currency ( passagem de moeda falsa ) and fraud ( burla ). On the same day she was brought before the Albufeira Criminal Court and questioned by an investigating judge (domestic proceedings no. 422/99.8TBABF). The applicant was assisted by an interpreter at that time.

In the course of the questioning, the applicant admitted that she had been using counterfeit currency.

At the end of her questioning, the investigating judge applied two preventive measures in respect of the applicant. She had to provide information on her identity and place of residence ( termo de identidade e resid ê ncia ), and leave Portugal within forty-eight hours.

On 17 September 1996 the public prosecutor issued an indictment against the applicant.

On 5 February 1997 the Albufeira Criminal Court set a hearing date for 24 April 1997.

On 10 February 1997 the Albufeira Criminal Court sent a copy of the indictment in Portuguese to the applicant ’ s address in the United Kingdom, in addition to information about the date of the hearing.

After failing to notify the applicant of the hearing, the Albufeira Criminal Court put the relevant notice on public display ( afixa çã o edital ).

On 5 May 1997 the court officially declared the applicant an absconder from criminal proceedings, by means of a record of failure to attend court ( declara çã o de contumácia ).

Between 23 November 2000 and 30 January 2006 three international arrest warrants and four European arrest warrants were issued against the applicant. The warrants were returned to the Portuguese authorities as they were incomplete.

On 30 June 2006 the Albufeira Criminal Court issued another European arrest warrant against the applicant, which requested:

“... the defendant ’ s detention, in order to bring her before a judge for application or enforcement of a preventive measure in the shortest possible time, and within a maximum of 48 hours of arrival in Portuguese territory.”

On 3 May 2008, pursuant to the European arrest warrant issued by the Portuguese authorities on 30 June 2006, the applicant was arrested and detained in Germany.

On 14 May 2008, while in detention in Germany, the applicant, through her legal counsel, challenged the lawfulness of her arrest and detention on the grounds that the arrest warrant was not in accordance with the Portuguese legislation in force at the moment of her arrest. She argued, in particular, that the preventive measure of detention on remand was no longer permissible in respect of the offences for which she was being prosecuted.

On 14 May 2008 the public prosecutor made an application for the European arrest warrant against the applicant to be immediately revoked on the grounds that it was not a proportionate means of obtaining information about the applicant ’ s identity and place of residence, which could have been obtained by means of a rogatory letter, and because the preventive measure of detention on remand was no longer permissible in respect of the offences for which she had been indicted. On the same day the investigating judge withdrew the European arrest warrant issued against the applicant.

On 15 May 2008 the applicant was released.

On 10 December 2008, the Albufeira Criminal Court terminated the criminal proceedings against the applicant, as they were time-barred pursuant to the ruling of the Supreme Court of Justice no. 5/2008 of 13 May 2008.

2. Proceedings before the Albufeira Civil Court

On 15 May 2009 the applicant instituted civil proceedings against the Portuguese State before the Albufeira Civil Court, seeking compensation for pecuniary and non-pecuniary damage in connection with her alleged illegal arrest and detention from 3 to 15 May 2008 (domestic proceedings no. 962/09.2TBABF). She claimed damages in the amount of 75,602.94 euros (EUR). She argued in particular that: (a) the preventive measure of detention on remand had not been permissible in respect of the crimes for which she had been investigated; (b) even if the measure had been permissible, it had still not been proportionate to its aim, taking into account that it had not been necessary to resort to it at the time of her first questioning; (c) in order to seek information about her identity and place of residence, the Portuguese authorities should have used a rogatory letter; and (d) the criminal proceedings against her had already been time-barred.

On 10 January 2011 the Albufeira Civil Court ruled against the applicant. It noted that the European arrest warrant had been lawfully issued and that she had been released within a reasonable period of time. The court considered that the criminal proce edings against her had not been time-barred at the moment of her arrest, since the ruling of the Supreme Court of Justice no. 5/2008 concerning the effects of court records of failure to attend had only been published on 13 May 2008. It further noted that, at the moment the arrest warrant had been issued, the preventive measure of detention on remand had been permissible in respect of the offences for which the applicant had been prosecuted.

On an unknown date the applicant appealed the decision before the É vora Court of Appeal. On 10 November 2011 the Court of Appeal dismissed her appeal and upheld the first-instance decision in its entirety for the same reasons as those contained in the previous judgment.

The applicant subsequently lodged an appeal on points of law ( recurso de revista excepcional ) with t he Supreme Court of Justice. On 29 March 2012 the appeal was declared admissible and sent for consideration on its merits.

On 2 December 2013 the Supreme Court of Justice dismissed the applicant ’ s appeal on points of law and upheld the decision of the É vora Court of Appeal of 10 November 2011. Subsequently, the applicant lodged a plea of nullity with the Conference of the Supreme Court in respect of certain parts of the judgment. On 21 January 2014 the Conference of the Supreme Court dismissed her plea as being manifestly ill-founded.

On 7 February 2014 the applicant lodged an appeal with the Constitutional Court. On 15 October 2014 the Constitutional Court declared the appeal inadmissible, considering that the applicant had raised a question of unconstitutionality of a decision of the Supreme Court of Justice and not unconstitutionality of a legal provision.

B . Relevant European Union law

Council Framework Decision of 13 J une 2002 on the European arrest warrant and the surrender procedures between Member States (2202/584/JHA) (“the Framework Decision”)

The Framework Decision provides for the execution in any member State (“the executing State”) of a judicial decision made in another member State (“the issuing State”) for the arrest and surrender of a person for the purpose of criminal proceedings or the execution of a custodial sentence or detention order.

The Framework Decision provides, so far as relevant:

Article 1

Definition of the European arrest warrant and obligation to execute it

“1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

3. The Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”

Article 2

Scope of the European arrest warrant

“1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.”

Article 17

Time limits and procedures for the decision to execute the European arrest warrant

“1. A European arrest warrant shall be dealt with and executed as a matter of urgency.

...

3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person.”

C. Relevant domestic law and practice

1. Relevant provisions of the Constitution of the Portuguese Republic

Article 27

(Right to freedom and security)

“...

5. Deprivation of freedom contrary to the provisions of the Constitution or the law places the State under a duty to pay compensation to the aggrieved person in accordance with the law.”

2. Relevant provisions of the Criminal Code

Under Article 265, the offence of uttering counterfeit currency carries a maximum sentence of five years ’ imprisonment.

Under Article 217, the offence of fraud carries a maximum sentence of three years ’ imprisonment.

3. Relevant provisions of the Code of Criminal Procedure

Under Article 202 § 1 (a), a s amended by Law no. 48/2007 of 29 August 2007, detention on remand is only permissible where there are strong suspicions that an offence has been committed which carries a maximum sentence of more than five years ’ imprisonment. At the time the relevant European arrest warrant was issued, Article 202 § 1 (a) provided that detention on remand could only be implemented where there were strong suspicions that an offence had been committed which carried a maximum sentence of more than three years ’ imprisonment.

Pursuant to Article 225, anybody who has been unlawfully deprived of his or her liberty may apply to an appropriate court for compensation.

Under Article 254 § 1, the purpose of detention is to ( i ) bring a detainee before a judge for questioning within forty-eight hours and have a preventive measure applied in respect of him or her; and (ii) ensure his or her immediate attendance before a judicial authority, or, failing that, within no more than twenty-four hours.

Under Article 257 § 1, an arrest in a situation where the suspect is not caught in the act ( forade flagrante delito ) may only be made upon the order of a judge or public prosecutor where there are well-founded reasons for believing that the suspect will not voluntarily present him or herself to the authorities within the period which they have defined, and in cases in which pre-trial detention is permitted.

4. Relevant provisions of Law no. 65/2003 of 23 August 2003

Law no. 65/2003 was enacted to give effect to the Council Framework Decision of 13 June 2002 on the European arrest warrant. Section 36 of Law no. 65/2003 reads:

“The authority which has the power to issue a European arrest warrant is the judicial authority which, under Portuguese law, has the power to order the arrest and detention of the wanted person.”

5. Case-law of the Constitutional Court and the Supreme Court of Justice

In judgment no. 183/2008 of 12 March 2008, published in the Official Gazette of 22 April 2008, the Constitutional Court declared, with general binding force, that Article 119 § 1 a) of the Criminal Code and Article 336 § 1 of the Code of Criminal Procedure were, taken together, unconstitutional, if interpreted so as to permit suspension of the limitation period in criminal proceedings on the grounds of a court record of failure to attend.

In judgment no. 5/2008 of 9 April 2008, published in the Official Gazette on 13 May 2008, the Supreme Court considered the possibility of suspending criminal proceedings by means of a court record of failure to attend ( declaração de contumácia ). The Supreme Court ’ s judgment seeking to harmonise the judicial approach to that question ( acórdão de fixação de jurisprudência ) contains the following passage:

“Within the scope of the 1982 Criminal Code and the 1987 Code of Criminal Procedure, in their original versions, a court record of failure to attend did not constitute grounds for suspending the limitation period of criminal proceedings.”

COMPLAINTS

Under Article 5 § 1 of the Convention, the applicant complains that she was unlawfully arrested and detained between 3 May and 15 May 2008 as, at the moment of her arrest, the European arrest warrant issued against her in 2006 lacked any legal basis.

The applicant also complains under Article 5 § 5 of the Convention that she was deprived of the opportunity to obtain damages for her unlawful arrest and detention.

QUESTIONS TO THE PARTIES

1. ( a ) Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention between 3 May and 15 May 2008? In particular, was the deprivation of her liberty during that period of time lawful within the meaning of Article 5 § 1 of the Convention? Did the European arrest warrant issued against her have any legal basis under Portuguese law at the time of her arrest, taking into account judgment no. 183/2008 of the Constitutional Court and the amendment to Article 202 § 1 (a) of the Code of Criminal Procedure by the adoption of Law no. 48/2007 of 29 August 2007 (see, for example, WÅ‚och v. Poland , no. 27785/95, § 114, ECHR 2000 ‑ XI, and Del Río Prada v. Spain [GC], no. 42750/09 , § 125, ECHR 2013)?

(b) Did the court with jurisdiction have a positive obligation to withdraw the European arrest warrant following the publication of judgment no. 183/2008 of the Constitutional Court on 22 April 2008?

(c) If the applicant ’ s arrest and detention were lawful, were those measures proportionate in the context of the criminal proceedings against her?

2. Did the applicant have an effective and enforceable right to compensation for her arrest and detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention (see, for example, N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002 ‑ X, and Boris Popov v. Russia , no. 23284/04 , §§ 84-86, 28 October 2010) ?