FOURTH SECTION

DECISION

Application no. 49229/19 FIRMESEGUR - SEGURANÇA PRIVADA, SA and others against Portugal (see list appended)

The European Court of Human Rights (Fourth Section), sitting on 19 September 2023 as a Committee composed of:

Tim Eicke, President , Branko Lubarda, Ana Maria Guerra Martins , judges , and Crina Kaufman, Acting Deputy Section Registrar ,

Having regard to:

the application against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 September 2019 by the applicants listed in the appended table (“the applicants”) and were represented by Ms V. Costa Ramos, a lawyer practising in Lisbon;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns criminal proceedings and a civil claim for damages brought against the applicants, a private security company (“the applicant company” and its former CEOs (“the second and third applicants”) in connection with unpaid social security contributions in the period from 2011 to 2013.

2. By a judgment of the Lisbon Criminal Court of 1 March 2018 the applicants were convicted for embezzlement of social security contributions and sentenced to fines amounting to 1,680 euros (EUR), EUR 1,100 and EUR 900, respectively. The Lisbon District Court also ordered the second and third applicants to pay EUR 28,465.65 to the social security in respect of pecuniary damage sustained by it, plus interest.

3. On 19 November 2018 the second and third applicants were notified in person of the judgment, in their own capacity and as representatives of the applicant company.

4 . On 23 November 2018 the legal aid lawyer who was representing them requested the Lisbon Criminal Court to relieve her of her duties ( pedido de escusa ).

5 . On 4 December 2018 M. Costa Ramos, who is also the applicants’ representative before the Court, was officially appointed the newly legal aid representative within the criminal proceedings and notified accordingly, with the mention of “appended for appeal” ( apenso de recurso) .

6 . On 15 January 2019 the applicants sought leave to appeal to the Court of Appeal of Lisbon without relying upon any impediment.

7. By a decision of 21st January 2019, the Lisbon Criminal Court refused leave to appeal on the grounds that the request had been submitted out of time, as the deadline had expired on 19 December 2018. It noted in this respect that the time-limit to lodge the appeal had not been interrupted by the replacement of the legal aid lawyer, as provided for by Articles 42 nos. 1 and 3 of Law 32/2004 of 29 July and Articles 66 nos. 2 and 4 and 411 no. 1 a) of the Code of Criminal Procedure, which constitute lex specialis applicable to legal aid in criminal proceedings.

8. On 4 February 2019 the applicants challenged this decision with the President of the Lisbon Court of Appeal.

9. On 19 March 2019 the Lisbon Criminal Court’s decision was upheld.

10. On 4 April 2019 the applicants appealed to the Constitutional Court which, on 30 September 2019, invited them to clarify the provisions at issue and in which submissions before the ordinary courts they had previously raised the question of constitutionality at issue.

11 . By a judgment of 9 July 2021, the Constitutional Court ruled against the applicants and deemed the interpretation of Articles 39 no. 1, 42 nos. 1 and 3 of Law 32/2004 of 29 July and Articles 66 nos. 2 and 4 and 411 no. 1 a) of the Code of Criminal Procedure not to be unconstitutional in the sense that “in criminal proceedings, the submission by a legal aid lawyer of a request to be relieved from duties does not interrupt the ongoing time-limit to lodge an appeal against the conviction.”

12. Under Article 6 §§ 1, 3 b) and c) and Article 13 of the Convention, the applicants alleged that the rejection of their appeal against their conviction to the Court of Appeal of Lisbon entailed a breach of their right to a fair trial, of the principle of equality of arms, of their right to have adequate time for the preparation of their defence, of their right to be assisted by a lawyer and of their right to an effective remedy.

13. Under Article 2 of Protocol No. 7 to the Convention, they also complained of the impossibility of having their conviction reviewed by a higher court.

THE COURT’S ASSESSMENT

14. The Court being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the applicants’ complaints brought under Articles 6 §§ 1, 3 b) and c) and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention are to be examined from the standpoint of Article 6 § 1 of the Convention (access to a court) alone.

15. The relevant principles on access to a court were summarised in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-79, 5 April 2018).

16. In so far as the applicants complained of the fact that the appeal was rejected as belated, the Court notes at the outset that the domestic courts considered that the submission by a legal aid lawyer of a request to be relieved from duties did not interrupt the ongoing time-limit to lodge an appeal against a criminal conviction, as provided for in Articles 42 nos. 1 and 3 of Law 32/2004 of 29 July and Articles 66 nos. 2 and 4 and 411 no. 1 a) of the Code of Criminal Procedure (see paragraphs 6 to 11 above). They also found that these provisions constitute lex specialis applicable to legal aid in criminal proceedings (see paragraph 6 above).

17. Nevertheless, the applicants did not take those provisions into account and lodged their appeal assuming that the submission by the previous legal aid lawyer of a request to be relieved from duties had in fact interrupted the ongoing time-limit to lodge the appeal.

18. The applicants were represented by a lawyer who was responsible for the technical aspects of the case, namely at the appeal stage.

19. Since Articles 42 nos. 1 and 3 of Law 32/2004 of 29 July and Articles 66 nos. 2 and 4 and 411 no. 1 a) of the Code of Criminal Procedure constitute lex specialis applicable to legal aid in criminal proceedings, it was foreseeable that notwithstanding the submission by a legal aid lawyer of a request to be relieved from duties, the time-limit to lodge the appeal would run without interruption.

20. In addition, the second legal aid lawyer was notified of her appointment with the specific mention of “appended for appeal” (paragraph 5 above) which meant that the appointment aimed at an appeal or a response to an appeal, the running time-limit of which was precisely mid-term.

21. The decision of the Lisbon Criminal Court was taken pursuant to the above mentioned domestic criminal procedure provisions, aimed at ensuring legal certainty and the proper administration of justice. The applicants did not allege that the domestic court made an interpretation which was incompatible with the applicable Portuguese law or that it had made a particularly strict application of the procedural rules. In sum, the Court finds no appearance in the instant case of an unjustifiable restriction on the applicants’ access to a court.

22. Accordingly, the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 October 2023.

Crina Kaufman Tim Eicke Acting Deputy Registrar President

Appendix

List of applicants:

No.

Applicant’s Name

Year of birth/registration

Nationality

Place of residence

1.FIRMESEGUR - SEGURANÇA PRIVADA, SA

2002Portuguese

Lisbon

2.Pedro Alexandre BRITO CANUTO

1974Portuguese

Badajoz

(Spain)

3.Paula Sofia DOS SANTOS PEDRO CANUTO

1975Portuguese

Badajoz

(Spain)