FOURTH SECTION

DECISION

Application no. 5156/20 Rui Pedro FRAGA MARTINS against Portugal

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 (no. 5156/20) 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 17 January 2020 by a Portuguese national, Mr Rui Pedro Fraga Martins, who was born in 1972 and lives in Valbom (“the applicant”) and was represented by Mr A. Coimbra Gonçalves, a lawyer practising in Porto;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the conviction of the applicant following an appeal against his acquittal, based on the evidence produced before the first instance’s court, without possibility of review by a higher court. It also concerns the rejection of the extraordinary appeal lodged by the applicant to obtain the uniformization of the case-law and the consequent revocation of his conviction.

2 . On 4 June 2018 the Gondomar Criminal Court acquitted the applicant of the charge of an offence of domestic violence, under Article 152 § 1 (a) and 2 of the Penal Code. On 30 April 2019, following an appeal lodged against the acquittal by the assistente ( auxiliary of the Prosecutor ), the Porto Court of Appeal reassessed the evidence and the correspondent facts and sentenced the applicant to one year and six months’ imprisonment, the execution of which was suspended for the same period, on the conditions of paying 2,000 Euros to the victim and attending a training programme for offenders. The applicant complained against this decision to the Court of Appeal, which dismissed the complaint by a decision of 12 June 2019, served on the applicant on 17 June 2019.

3 . On 4 June 2019 the applicant sought leave to appeal for judicial review to the Supreme Court. Leave was refused on 7 June 2019 by the Porto Court of Appeal under Articles 400 § 1 (e) and (f) and 432 § 1 (a) and (b) of the Code of Criminal Procedure (thereinafter the “CCP”). The applicant complained against this decision to the Supreme Court, which confirmed on 15 July 2019 the inadmissibility of the appeal for judicial review, under Articles 432 § 1 (b) and 400 § 1 (e) of the CCP. This last decision was served on the applicant on 18 July 2019.

4 . On 2 August 2019 the applicant lodged before the Supreme Court an extraordinary appeal, a remedy provided in Article 437 § 2 of the CCP, for ensuring the uniformity of the case-law and the consequent revocation of his conviction, as regards the interpretation made of the principle of free assessment of the evidence with immediacy, established on Article 127 of the CCP. He argued that the Court of Appeal had ruled on his case after making a different assessment of the evidence compared to the first instance court, in contradiction with a judgment of 23 June 2015 in which the Court of Appeal had reasoned that it could not, as a rule, modify the first instance assessment of the evidence. On 28 November 2019 the Supreme Court rejected the appeal, under Articles 437 § 1 and 441 § 1 of the CCP, on the grounds that there was no contradiction between the two Court of Appeal judgments since in both decisions the Court of Appeal had interpreted Article 127 of the CCP in the same way, with non-coincidental outcomes only given the different evidence available.

5 . Relying on Article 6 § 1 of the Convention, the applicant complained of the divergent case-law concerning the reassessment of the evidence by the courts of appeal and the rejection of the extraordinary appeal lodged in this respect with the Supreme Court (see paragraph 4 above).

6 . Relying on Article 2 of Protocol no. 7 to the Convention, Article 14 § 5 of International Covenant on Civil and Political Rights and Article 53 of the Convention, the applicant complained that the rejection of his appeal for judicial review before the Supreme Court amounts to a breach to his right of appeal in criminal matters (see paragraph 3 above).

7 . Finally, the applicant alleges under Article 6 § 1 of the Convention that there was a breach of his right to a fair trial, on the grounds that the Court of Appeal convicted him based on evidence that was produced only before the first instance’s court (see paragraph 3 above), as if it was doing a second trial but without immediacy.

THE COURT’S ASSESSMENT

8 . As to the complaint concerning the conflicting case-law with regard to the assessment of the evidence by the courts of appeal (see paragraph 5 above), the Court refers to the general principles summarised in the cases Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, §§ 49-58, 20 October 2011) and Lupeni Greek Catholic Parish and Others v. Romania ([GC] no. 76943/11, § 116, 29 November 2016). In particular, the Court reiterates that different outcome in two disputes cannot be considered to give rise to conflicting case-law when this is justified by a difference in the factual situations at issue (see Lupeni Greek Catholic Parish and Others , cited above, § 116; Hayati Çelebi and Others v. Turkey , no. 582/05, § 52, 9 February 2016; and Ferreira Santos Pardal v. Portugal , no. 30123/10, § 42, 30 July 2015).

9 . In the instant case, the applicant alleges that there is a divergence between two decisions of the Porto Court of Appeal in two different cases (see paragraph 5 above). In the Court’s view, this is, however, manifestly not enough to consider that there is “a profound and long-standing difference” in the case-law of the national courts of appeal. Furthermore, the decision of the Supreme Court of 28 November 2019 (see paragraph 4 above) that did not recognise the existence of a conflicting case-law appears well-reasoned and has no sign of arbitrariness.

10. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

11. As regards the complaint concerning the breach of the applicant’s right of appeal in criminal matters (see paragraphs 3 and 6 above), which falls to be examined under Article 2 of Protocol no. 7 of the Convention only, it is worth noting that this right may be subject to exceptions in cases in which the person concerned had been convicted following an appeal against acquittal, as established in Article 2 § 2 of Protocol no. 7 to the Convention. As the situation at issue clearly falls under this exception, this complaint is manifestly ill-founded.

12. It must therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

13. The Court reiterates that the requirements contained in Article 35 § 1 of the Convention concerning the exhaustion of domestic remedies and the six months’ period, as applicable at the material time, are closely interrelated (see, Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016 and Traina v. Portugal , no. 59431/11, § 29, 21 March 2017).

14. In the instant case, the Court notes that, at the material time, the judgment of the Court of Appeal of 12 June 2019 was not amenable to an appeal, hence the rejection of the appeal for judicial review before the Supreme Court (see paragraph 3 above). As to the extraordinary appeal lodged by the applicant with the Supreme Court under Article 437 § 2 of the CCP (see paragraph 4 above), it was only capable of interrupting the six ‑ month time limit in respect of the complaint brought by the applicant on account of divergent case-law (see paragraphs 8-9 above). As a result, none of the appeals lodged by the applicant with the Supreme Court can be considered as effective remedies for the purpose of Article 35 § 1 of the Convention in respect of the remaining complaint.

15. Accordingly, in so far as the applicant complains of the unfairness of the criminal proceedings instituted against him, the Court concludes that the final decision, within the meaning of Article 35 § 1 of the Convention, in this respect, is the decision of the Porto Court of Appeal of 12 June 2019 which was served on the applicant on 17 June 2019.

16. As the application was introduced on 17 January 2020, this complaint is belated and must be rejected in accordance with Article 35 §§ 1 and 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 Section Registrar President