Published on 19 February 2024

FOURTH SECTION

Application no. 2903/19 Mark Andrew AUSTIN against Portugal lodged on 9 January 2019 communicated on 30 January 2024

SUBJECT MATTER OF THE CASE

The applicant is a British national who at the material time was living in Portugal. The application concerns his trial and conviction in absentia for false accusation and aggravated defamation following written statements made by him against a court’s clerk in the complaint book of the Monção Court.

On 4 April 2017 the Monção Court sentenced the applicant to a fine for the sum of 1,550 euros (EUR) for false accusation and aggravated defamation. On 17 May 2018 the applicant was notified of the judgment via a rogatory letter.

On 23 May 2018 the applicant sent both an email and a letter to the Monção Court “appealing” against the conviction. On 13 June 2018 the Monção Court ordered the applicant’s legal aid lawyer to lodge the applicant’s appeal in accordance with the required formalities. Nevertheless, the legal aid lawyer failed to lodge the appeal. On 31 October 2018, the Monção Court notified the applicant of its decision of 13 June 2018 and also informed him that the conviction was considered final since 18 June 2018.

Invoking Article 6 §§ 1 and 3 (a) (b) and (c) of the Convention, the applicant complains of the unfairness of his trial and conviction in absentia . In particular, he states that he was not informed by the Monção Court of the development of the criminal proceedings instituted against him. He also alleges that the Monção Court was not an “impartial tribunal" since the case concerned one of its clerks. He further complains of the lack of effective assistance from the legal aid lawyers appointed to represent him during the investigation and the trial.

Relying on Article 7 of the Convention, the applicant states that he was convicted for facts which could not constitute a criminal offence according to the Court’s case law.

Under Article 10 of the Convention, the applicant alleges that his conviction amounted to a breach of his right to freedom of expression.

Relying on Article 13 of the Convention, he also claims that the criminal proceedings were initiated against him only to prevent further legitimate complaints, depriving him of this method of an effective remedy.

QUESTIONS TO THE PARTIES

1. Having regard to the general principles concerning trial in absentia established by the Court (see Sejdovic v. Italy [GC] , no. 56581/00, §§ 82 and 84, 1 March 2006; Shkalla v. Albania , no. 26866/05, §§ 66 et seq., 10 May 2011; and Topi v. Albania , no. 14816/08, §§ 53 et seq., 22 May 2018), did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 of the Convention ? In particular:

(a) Was the applicant sufficiently aware of the proceedings against him and did he unequivocally waive his right to appear at trial and defend himself?

(b) Did the applicant have the opportunity to obtain, after his conviction in absentia , a fresh determination of the merits of the charges against him, in respect of both law and fact?

2. Was the Monção Court an “impartial tribunal”, as required by Article 6 § 1 of the Convention (see Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005‑XIII, and Morice v. France [GC], no. 29369/10, § 73, ECHR 2015)?

3. Did the applicant enjoy a practical and effective defence in accordance with Article 6 §§ 1 and 3 (c) of the Convention during the criminal proceedings brought against him? If not, were the relevant authorities duty obligated to take steps to ensure practical and effective respect for the applicant’s right to due process (see Kamasinski v. Austria , 19 December 1989, § 65, Series A no. 168; Daud v. Portugal , 21 April 1998, § 38, Reports of Judgments and Decisions 1998‑II; and Czekalla v. Portugal , no. 38830/97, §§ 60 and 65 ‑ 71, ECHR 2002-VIII)?

4. Has there been a breach of the applicant’s right to freedom of expression contrary to Article 10 of the Convention (see Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 82, 27 June 2017, and Steel and Morris v. the United Kingdom , no. 68416/01, § 95, ECHR 2005-II) ?