FOURTH SECTION

DECISION

Application no. 61413/19 Rui André PÉROLA DE MATOS 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 Ilse Freiwirth, Deputy Section Registrar ,

Having regard to:

the application (no. 61413/19) 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 22 November 2019 by a Portuguese national, Mr Rui André Pérola de Matos (“the applicant”), who was born in 1980, lives in Entroncamento, and was represented by Ms E. Marcelo, a lawyer practising in Setúbal;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. On 13 February 2017 the Leiria Criminal Court convicted the applicant of two offences of aggravated forgery and one offence of attempted aggravated fraud, and sentenced him to four years and six months’ imprisonment.

2 . On 13 June 2018, following an appeal by the applicant, the Coimbra Court of Appeal upheld his conviction.

3 . In a judgment dated 30 January 2019, the Coimbra Court of Appeal dismissed a plea of nullity raised by the applicant concerning its previous judgment.

4 . On 14 February 2019 the applicant filed a plea of nullity against the judgment of the Coimbra Court of Appeal of 30 January 2019 and, simultaneously, sought leave to appeal to both the Supreme Court, against the judgment of the Coimbra Court of Appeal of 13 June 2018 upholding his conviction (paragraph 2 above), and to the Constitutional Court on the grounds that the Leiria Criminal Court’s interpretation of the provisions of the Code of Criminal Procedure on which it had relied to admit a social report in evidence, the general provision of the Code of Criminal Procedure regarding the reasoning of judgments, and the provision of the Criminal Code defining the offence of fraud were unconstitutional.

5 . On 9 April 2019 the Coimbra Court of Appeal dismissed the plea of nullity concerning its judgment of 30 January 2019, refused the applicant leave to appeal to the Supreme Court against the judgment of 13 January 2018 but granted him leave to appeal to the Constitutional Court.

6 . The applicant challenged that decision before the President of the Coimbra Court of Appeal, who referred it proprio motu to the Supreme Court as the court with jurisdiction in the matter. On 24 May 2019 the Supreme Court dismissed the applicant’s appeal against his conviction, finding, firstly, that the judgment of 13 June 2018 was unappealable as provided for in Article 432 § 1 (b) and Article 400 § 1 (f) of the Code of Criminal Procedure and secondly, that the plea of nullity regarding the Coimbra Court of Appeal’s judgment of 30 January 2019 could not be examined by the Supreme Court as the judgment itself was unappealable.

7 . On 30 September 2019 the Constitutional Court rejected the appeal by the applicant in a summary decision based on the absence of a final decision of the ordinary courts at the time the applicant had lodged the appeal, as required by Article 70 § 2 of the Constitutional Court Act, since the pleas of nullity and the appeal to the Supreme Court had still been pending at the time the applicant had sought leave to appeal to the Constitutional Court (paragraph 4 above).

8. On 16 January 2020 that decision was upheld by a three-judge bench ( conferência ) of the Constitutional Court.

9 . Under Articles 6 and 14 of the Convention, the applicant complained about the use as evidence against him of a social report containing discriminatory assertions regarding his Roma origin, in breach of his right to adversarial proceedings. In addition, he complained of deficiencies in the reasoning of the domestic courts and maintained his innocence of the offence of aggravated fraud of which he had been convicted.

10 . Relying on Article 13 of the Convention, the applicant complained of a lack of access to the Constitutional Court.

THE COURT’S ASSESSMENT

11. 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), will examine under Article 6 of the Convention the complaint raised by the applicant under Article 13 (see paragraph 10 above) concerning the lack of access to the Constitutional Court (see Albuquerque Fernandes v. Portugal , no. 50160/13, § 52, 12 January 2021).

12. The relevant principles on the right of access to a court were summarised in Zubac v. Croatia ([GC] no. 40160/12, §§ 76-79, 5 April 2018; see also, in respect of criminal proceedings, Rocchia v. France , no. 74530/17, § 23, 2 February 2023).

13. The Court notes at the outset that an appeal to the Constitutional Court can only be lodged when the proceedings before the ordinary courts are concluded by means of a final decision, as provided for in Article 70 § 2 of the Constitutional Court Act (see Dos Santos Calado and Others v. Portugal , nos. 55997/14 and 3 others, § 80, 31 March 2020). Furthermore, according to the Constitutional Court’s well-established case-law, the fulfilment of that requirement is to be assessed with reference to the time when the appeal is lodged.

14. The Court observes that in the present case, the appeal to the Constitutional Court was lodged simultaneously with an objection on grounds of nullity and an appeal against the judgments of the Court of Appeal (see paragraph 4 above). Therefore, at the time the applicant sought leave to appeal to the Constitutional Court, the Court of Appeal’s judgments of 13 June 2018 and of 30 January 2019 (paragraphs 2-3 above) were not yet final.

15 . The Court notes that the applicant was represented by a lawyer, who was responsible for handling the technical aspects of the case. The situation which arose could have been avoided if the applicant’s lawyer had not lodged the appeals simultaneously, but rather had exhausted remedies in the ordinary courts with a view to obtaining a final decision before turning to the Constitutional Court.

16. Lastly, the fact that the Court of Appeal had granted leave to appeal to the Constitutional Court (paragraph 5 above) is not decisive, since, as provided for in Article 76 § 3 of the Constitutional Court Act, a decision of the ordinary courts granting leave to appeal does not legally bind the Constitutional Court.

17. In the Court’s view, the decisions of the Constitutional Court ensured legal certainty and the proper administration of justice and did not amount to excessive formalism involving an unreasonable or particularly strict application of procedural rules leading to an unjustifiable restriction on the applicant’s access to a court (see Zubac , cited above, §§ 78, 88 and 98-99, and compare Albuquerque Fernandes , cited above, §§ 75 and 77-78).

18. Accordingly, this complaint 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.

19. As to the remaining complaints (paragraph 9), in view of the findings above, the Constitutional Court’s decision of 16 January 2020 (see paragraph 7 above) cannot be taken into account for the calculation of the six ‑ month period (see, mutatis mutandis , Traina v. Portugal (dec.), no. 59431/11, §§ 29‑30, 21 March 2017). Furthermore, the appeals to the Supreme Court of Justice were clearly inadmissible. Hence the final domestic decision within the meaning of Article 35 § 1 of the Convention, as applicable before the entry into force of Article 4 of Protocol No. 15, was the judgment given by the Court of Appeal on 9 April 2019 (see paragraph 5 above), more than six months before the date on which the present application was lodged with the Court (22 November 2019).

20. The Court therefore considers that these complaints were lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention (compare Traina , cited above, §§ 29-30).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

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

Ilse Freiwirth Tim Eicke Deputy Section Registrar President