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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> SARAIVA DE CARVALHO v. PORTUGAL - 15651/89 [1994] ECHR 15 (22 April 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/15.html
Cite as: (1994) 18 EHRR 534, [1994] ECHR 15, 18 EHRR 534
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In the case of Saraiva de Carvalho v. Portugal*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of the Rules of Court,
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr A. Spielmann,
Mr S.K. Martens,
Mr I. Foighel,
Mr F. Bigi,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr J. Makarczyk,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 November 1993 and
23 March 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
* Note by the Registrar: The case is numbered 14/1993/409/488.
The first number is the case's position on the list of cases
referred to the Court in the relevant year (second number). The
last two numbers indicate the case's position on the list of
cases referred to the Court since its creation and on the list
of the corresponding originating applications to the Commission.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 7 April 1993,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 15651/89) against the Portuguese Republic
lodged with the Commission under Article 25 (art. 25) by a
Portuguese national, Mr Otelo Saraiva de Carvalho, on
10 October 1989.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Portugal
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 para. 1
(art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr M.A. Lopes Rocha, the elected judge of Portuguese nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 23 April 1993,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr F. Gölcüklü,
Mr R. Macdonald, Mr A. Spielmann, Mr S.K. Martens, Mr I. Foighel,
Mr F. Bigi and Mr A.B. Baka (Article 43 in fine of the Convention
and Rule 21 para. 4) (art. 43). Subsequently Mr J. Makarczyk,
substitute judge, replaced Mr Macdonald, who was unable to take
part in the further consideration of the case (Rules 22 para. 1
and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent of
the Portuguese Government ("the Government"), the applicant's
lawyer and the Delegate of the Commission on the organisation of
the proceedings (Rules 37 para. 1 and 38). Pursuant to the order
made in consequence, the Registrar received the Government's
memorial on 26 August 1993 and the applicant's memorial
on 30 August. On 6 September the Secretary to the Commission
informed the Registrar that the Delegate would submit his
observations at the hearing.
5. On 3 November 1993 the Commission produced the documents
relating to the proceedings before it, as requested by the
Registrar on the President's instructions.
6. In accordance with the decision of the President, who had
given the applicant's lawyer leave to use the Portuguese language
(Rule 27 para. 3), the hearing took place in public in the Human
Rights Building, Strasbourg, on 23 November 1993. The Court had
held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr A. Henriques Gaspar, Deputy Attorney-General
of the Republic, Agent,
Mr M. Pedrosa Machado, Professor of Law,
University of Lisbon and Portuguese Catholic
University,
Miss M.J. Pires, deputy to the Permanent
Representative of Portugal to the
Council of Europe, Counsel;
(b) for the Commission
Mr M.P. Pellonpää, Delegate;
(c) for the applicant
Mr R. Francês, of the Lisbon Bar, Counsel.
The Court heard addresses by Mr Henriques Gaspar,
Mr Pedrosa Machado, Mr Pellonpää and Mr Francês. The applicant
also addressed the Court.
AS TO THE FACTS
I. The circumstances of the case
7. Born in 1936, Mr Otelo Saraiva de Carvalho is a
Portuguese citizen who lives in Oeiras. At the material time he
was a lieutenant-colonel in the Portuguese army.
8. On 10 June 1984 he was arrested and held in pre-trial
detention on a charge of founding and leading a terrorist
organisation, which is an offence under Article 288 of the
Criminal Code; he was suspected of being one of the founders and
leaders of the "FP 25 de Abril" (Popular Forces 25 April), a
group that had claimed responsibility for several bomb outrages,
armed attacks and murders.
A. The judicial investigation proceedings
9. On 30 December 1984 the judge of the Lisbon Criminal
Investigation Court (tribunal de instrução criminal) to whom the
case had been assigned closed the adversarial investigation and
sent the file to the public prosecutor's office.
10. On 7 January 1985 the prosecutor delivered his charges
(acusação). He accused the applicant and several of his co-
defendants of having drawn up a comprehensive plan under which,
by means of the "FP 25 de Abril", they would seize power by force
and overthrow the State's institutions. He emphasised that
Mr Saraiva de Carvalho was one of the instigators of the scheme.
11. In accordance with section 59 of Law no. 82/77 of
6 December 1977 on the administration of justice, section 8 of
Legislative Decree no. 269/78 of 1 September 1978 and Article 365
of the Code of Criminal Procedure (see paragraph 26 below), the
file was sent, together with the prosecution's submissions, to
the Lisbon Criminal Court (tribunal criminal) so that the judge
responsible for the case, Mr Antonio Salvado, could issue the
despacho de pronúncia or de não pronúncia.
12. On 22 January 1985 Mr Salvado issued a despacho de
pronúncia. After noting that there had been no irregularities
during the judicial investigation or any other impediment to a
trial of the merits, he rejected the prosecution's charges in
respect of four of the co-defendants on the ground that the
evidence gathered was not sufficient to enable a reliable
assessment to be made of the probability of guilt ("a prova
indiciária recolhida ... é insuficiente para ... permitir a
formulação de um sério juizo de probabilidade sobre a sua
culpabilidade"). On the other hand, he accepted the charges
relating to Mr Saraiva de Carvalho and seventy-two other
defendants and decided to keep all but three of them in pre-trial
detention.
The applicant did not appeal against the despacho under
Article 371 of the Code of Criminal procedure (see paragraph 26
below).
B. The judicial proceedings
1. In the Lisbon Criminal Court
13. The trial began on 7 October 1985 before the Fourth
Division of the Lisbon Criminal Court, which was composed of
three judges and was presided over by Mr Salvado. The
proceedings took up no fewer than 263 sittings of the court.
14. At the hearing on 8 October the applicant lodged an
appeal with the Lisbon Court of Appeal challenging the
compatibility of the provisions cited earlier (see paragraph 11
above) which empowered one and the same judge both to issue the
despacho de pronúncia and to try the case with
Article 32 para. 5 of the Portuguese Constitution and Article 6
para. 1 (art. 6-1) of the Convention.
He argued that in making such an order, the judge formed
a view of an accused's guilt in advance that was likely to
influence him when giving judgment on the merits.
On the same day, the Criminal Court held the appeal to be
admissible and decided to refer it to the higher court together
with any appeal against the judgment it would itself be
delivering.
15. On 20 May 1987 the Criminal Court held that the applicant
was a leading member of the "FP 25 de Abril" but not one of their
founders and sentenced him to fifteen years' military
imprisonment (presídio militar), of which one year, ten months
and fifteen days were immediately remitted under an amnesty. It
acquitted sixteen of his co-defendants and sentenced the others
and Mr Saraiva de Carvalho jointly and severally to pay the State
1,000 million escudos.
2. In the Lisbon Court of Appeal
16. On 25 November 1987 the Lisbon Court of Appeal (tribunal
de relação) dismissed appeals by the prosecution and thirty-seven
of the defendants, including Mr Saraiva de Carvalho.
Unlike the Criminal Court, it held that the applicant was
also one of the founders of the "FP 25 de Abril". It
consequently increased the sentence to eighteen years' military
imprisonment, two years and three months of which were
immediately remitted under the amnesty. The court upheld the sum
to be paid.
17. As regards the complaint based on Article 6 para. 1
(art. 6-1) of the Convention (see paragraph 14 above), the court
pointed out that the drafting history showed that the purpose of
section 59 of the aforementioned Law no. 82/77 was precisely to
ensure that investigating judges did not give rulings on the
offences into which they had to inquire; that was why the
legislature had vested in the trial judge and not the
investigating judge the power to issue the despacho de pronúncia,
which entailed assessing and classifying the offences charged.
3. In the Supreme Court
18. An appeal by Mr Saraiva de Carvalho to the Supreme Court
(Supremo Tribunal de Justiça) was dismissed on 22 June 1988.
Referring to its case-law, the court held that the provisions
complained of by the applicant were not incompatible with
Article 32 para. 5 of the Constitution; a judge issuing a
despacho de pronúncia was not bound by the view taken at that
stage of the proceedings and had complete freedom when giving
judgment on the merits, so that his impartiality was in no way
jeopardised.
On the other hand the court held that the applicant was
only a leader of the "FP 25 de Abril" and accordingly reduced the
sentence to seventeen years' imprisonment.
4. In the Constitutional Court
19. Finally, the applicant applied to the Constitutional
Court (Tribunal constitucional). Reiterating the submissions he
had made in the other courts, he argued in particular that the
despacho de pronúncia was the key decision in the prosecution.
The fact that it was taken by a judge who subsequently sat on the
trial court violated Article 32 para. 5 of the Constitution,
which established an absolute separation between judicial
investigation, prosecution and trial; it also, he submitted,
undermined the court's impartiality, as the judge in question
would be prejudiced against the defendant when he came to
consider the merits.
20. In its judgment of 15 February 1989 the Constitutional
Court emphasised the need to distinguish between the indictment,
which was the responsibility of the public prosecutor's office,
and the despacho de pronúncia. The latter was designed solely
to verify the probability of guilt in order to avoid a trial
where there was no prima facie evidence. It was thus a decision
on the viability of the indictment and did not entail any
prejudice on the part of the judge when the merits were being
considered. It consequently served as a filter and a safeguard.
Even if his legal classification of the facts was different, a
judge did not act as a prosecutor. In the instant case
Mr Salvado could not be accused of partiality merely because he
had issued the despacho de pronúncia. It would have been
different if in his decision he had gone beyond the scope of the
prosecution's charges and had made substantial alterations to
them. In that case, which was not the one before it, the
distinction between the indictment and the despacho de pronúncia
would have been lost as the judge would have encroached on the
prerogatives of the public prosecutor.
The Constitutional Court did, however, allow the appeal
on another ground, not adduced before the European Court of Human
Rights (see paragraphs 27 and 28 below), which related to a lack
of reasons in the judgment at first instance. It accordingly
remitted the case to the Supreme Court for the appropriate steps
to be taken.
21. On 23 February 1989 the prosecution sought clarification
of certain passages in the judgment and applied for rectification
of clerical errors in it. On 12 April the Constitutional Court
ordered the rectifications, allowed one item in the application
for clarification and provided the particulars sought.
5. The subsequent proceedings
22. On its rehearing of the case on 17 May 1989 the Supreme
Court quashed the Lisbon Court of Appeal's judgment of
25 November 1987 and remitted the case to that court for a fresh
assessment of the facts.
The applicant was provisionally released that same day.
23. On 13 September 1989 the Lisbon Court of Appeal delivered
a new judgment; the prosecution and several defendants, including
the applicant, appealed against it on points of law to the
Supreme Court.
On 19 December 1990 the Supreme Court allowed the appeals
in part and varied the impugned decision accordingly.
Mr Saraiva de Carvalho and seven of the co-defendants
appealed to the Constitutional Court against the Supreme Court's
judgment. The outcome of the proceedings is still awaited.
II. Relevant domestic law
A. The Constitution
24. Under Article 32 para. 5 of the Constitution,
"Criminal proceedings shall be accusatorial, the trial
and investigative measures laid down by law being
governed by the adversarial principle."
B. The Criminal Code
25. Under Article 288 of the Criminal Code,
"1. Anyone promoting or founding a terrorist group,
organisation or association shall be punishable by five
to fifteen years' imprisonment.
2. 'A terrorist group, organisation or association'
shall be understood to include any group of two or more
persons, who, acting in concert, set out to undermine
national integrity and independence or prevent, change or
impair the functioning of State institutions as
established by the Constitution; or to force the
authorities to do something, refrain from doing something
or tolerate something being done; or to intimidate
certain persons or groups or the entire population by
committing offences
...
(e) which entail the use of bombs, grenades,
firearms, explosive substances or devices, incendiary
material of any kind or parcel or letter bombs.
...
4. Where [the members of] a group, organisation or
association ... are found in possession of one of the
items mentioned in sub-paragraph (e) of paragraph 2 with
a view to achieving its criminal ends, the sentence
within the minimum and maximum limits shall be increased
by one-third."
C. The Code of Criminal Procedure
26. The relevant provisions of the Code of Criminal Procedure
in force at the time - a new code took effect on 1 January 1988 -
were the following:
Article 349
"Where the judicial investigation discloses prima facie
evidence of the commission of a punishable offence, of
the identity of the person who committed it and of his
liability, the public prosecutor's office, if it has the
standing (legitimidade) to do so, shall deliver its
charges."
Article 365
"Where the prosecution is brought by the public
prosecutor's office or, as the case may be, by the
assistente, the file shall immediately be submitted to
the judge in order that he may issue his despacho de
pronúncia or de não pronúncia within eight days."
Article 366
"The despacho de pronúncia shall contain
1. the name, occupation and address, if known, of
the defendants or the necessary information to identify
them;
2. an exact description of the offences which they
are considered to have committed and the capacity in
which they acted;
3. any special or general aggravating or extenuating
circumstances;
4. an indication of the statute creating the offence
and providing for penalties;
5. any decision relating to the accused's
provisional release which, in accordance with the law,
prolongs or alters the previously existing situation;
6. the information prescribed in Articles 354, 356
and 357, where necessary, and the order to communicate
information concerning the accused to the criminal
records office;
7. the date and the judge's signature.
..."
Article 371
"The public prosecutor's office, a private prosecutor
and the accused may appeal against a despacho de
pronúncia. The public prosecutor's office and a private
prosecutor may appeal against a despacho de não pronúncia
..."
Section 59 of Law no. 82/77 of 6 September 1977 on the
administration of justice provides:
"The Criminal Court shall be competent for the
pronúncia, the trial and the subsequent phases in respect
of criminal cases, subject to sections 63, 67 and 70."
Article 8 of Legislative Decree No. 269/78 of
1 September 1978 implementing the aforementioned Law provides:
"The judges of the Criminal Court shall be competent
for the pronúncia or its equivalent, the trial and the
subsequent phases in respect of cases to be tried under
the 'de querela' procedure or which are reserved to the
court sitting as a bench."
PROCEEDINGS BEFORE THE COMMISSION
27. Mr Saraiva de Carvalho applied to the Commission on
10 October 1989 (application no. 15651/89). He complained of a
breach of his right to have his case heard by an "impartial
tribunal" within the meaning of Article 6 para. 1 (art. 6-1) of
the Convention in that the same judge had both initially issued
the despacho de pronúncia and subsequently presided over the
Criminal Court. He also alleged that he had not had a fair trial
on account of inadequate reasoning in the trial court's judgment.
28. The Commission declared the second complaint inadmissible
on 17 May 1990 and the first complaint admissible on 19 May 1992.
In its report of 14 January 1993 (Article 31) (art. 31), it
expressed the opinion by nine votes to eight that there had been
no violation of Article 6 para. 1 (art. 6-1). The full text of
the Commission's opinion and of the three dissenting opinions
contained in the report is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment
(volume 286-B of Series A of the Publications of the Court), but
a copy of the Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
29. In their memorial the Government asked the Court to hold
that there had been no breach of Article 6 para. 1 (art. 6-1) of
the Convention in the case.
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
30. Mr Saraiva de Carvalho argued that his case had not been
heard by an "impartial tribunal" within the meaning of
Article 6 para. 1 (art. 6-1), which provides:
"In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing ... by
an ... impartial tribunal ..."
In his submission, the Fourth Division of the Lisbon
Criminal Court, which on 20 May 1987 had sentenced him to fifteen
years' military imprisonment, had not satisfied the requirements
of that provision. Its presiding judge, Mr Salvado, had earlier,
as the judge in charge of the case, issued the despacho de
pronúncia. Such a decision meant that at the outset of the
proceedings the judge had already become convinced of the
applicant's guilt, a fact that could not fail to affect the
conduct of the trial, which was the presiding judge's
responsibility.
31. According to the Government, Mr Saraiva de Carvalho's
fears could not be regarded as objectively justified. The
despacho de pronúncia could not be likened to a committal for
trial; nor was it to be confused with the indictment, since it
related only to the indictment's "viability". It afforded an
accused a double safeguard against having to undergo a public
trial when there was no prima facie evidence against him and
against being tried for offences not mentioned in the despacho.
In accordance with the procedure in force at the material time
and with the Supreme Court's case-law, a judge who issued a
despacho was not bound by it and enjoyed complete freedom to
reach his conclusion on the merits on the basis of the evidence
submitted under adversarial procedure at the trial.
32. The Commission accepted this argument in substance.
33. The Court points out that the existence of impartiality
for the purposes of Article 6 para. 1 (art. 6-1) must be
determined according to a subjective test, that is on the basis
of the personal conviction of a particular judge in a given case,
and also according to an objective test, that is ascertaining
whether the judge offered guarantees sufficient to exclude any
legitimate doubt in this respect (see, among other authorities,
the Fey v. Austria judgment of 24 February 1993, Series A
no. 255-A, p. 12, para. 28).
34. As far as the subjective test is concerned, the applicant
did not dispute Mr Salvado's personal impartiality.
35. Under the objective test, it must be determined whether,
quite apart from the judge's personal conduct, there are
ascertainable facts which may raise doubts as to his
impartiality. In this respect even appearances may be of some
importance. It follows that when it is being decided whether in
a given case there is a legitimate reason to fear that a
particular judge lacks impartiality, the standpoint of the
accused is important but not decisive. What is decisive is
whether this fear can be held to be objectively justified (ibid.,
p. 12, para. 30, and the Padovani v. Italy judgment of 26
February 1993, Series A no. 257-B, p. 20, para. 27).
In this connection, the Court has held that the mere fact
that a judge has already taken decisions before the trial cannot
in itself be regarded as justifying anxieties about his
impartiality. What matters is the scope and nature of the
measures taken by the judge before the trial (see the Hauschildt
v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21,
para. 49, and the Nortier v. the Netherlands judgment of
24 August 1993, Series A no. 267, p. 15, para. 33).
36. In the despacho de pronúncia in question Mr Salvado
found, firstly, that there had been no irregularities during the
judicial investigation or any other impediment to a trial of the
merits. He went on to hold that the evidence was not sufficient
to enable a reliable assessment to be made of the probability
that four of the co-defendants were guilty, and he consequently
rejected the prosecution's charges against them. He admitted the
charges in respect of the other defendants, however, including
Mr Saraiva de Carvalho, and decided that all but three of the
accused should be kept in pre-trial detention.
37. Like the Government, the Court accepts that this
intermediate decision is not equivalent to a committal for trial.
Under the Portuguese law applicable at the time, the judge in
charge of the case, when issuing the despacho, was determining
whether the file, including the prosecution's charges, amounted
to a prima facie case such as to justify making an individual go
through the ordeal of a trial. The issues which the judge has
to settle when taking this decision are consequently not the same
as those which are decisive for his final judgment. This may be
illustrated by the fact that on 20 May 1987 the Criminal Court
division which Mr Salvado presided over acquitted sixteen of the
co-accused included in the despacho. Besides, if Mr Saraiva de
Carvalho had had any misgivings about the consequences of the
order, he could have been expected to appeal against it under
Article 371 of the Code of Criminal Procedure (see paragraph 26
above).
38. The instant case differs from the Piersack v. Belgium
case (judgment of 1 October 1982, Series A no. 53) and the De
Cubber v. Belgium case (judgment of 26 October 1984, Series A
no. 86) in the nature of the duties performed by the judges who
sat in those cases before the trial of the merits. In producing
the despacho, Mr Salvado was acting in his capacity as a judge
of the Fourth Division; he took no steps in the investigation or
in the prosecution. His detailed knowledge of the case did not
mean that he was prejudiced in a way that prevented him from
being impartial when the case came to trial. His function in the
initial phase of the proceedings was to satisfy himself not that
there was a "particularly confirmed suspicion" (see the
Hauschildt judgment previously cited, p. 22, para. 52) but that
there was prima facie evidence (compare the "serious indications"
mentioned in the Nortier case previously cited, p. 16, para. 35).
Nor can Mr Salvado's preliminary assessment of the
available evidence be regarded as a formal finding of guilt.
That was made only in the judgment of 20 May 1987, on the basis
of the evidence adduced and tested orally at 263 sittings and
which led the division presided over by Mr Salvado to convict the
applicant.
39. As to the decision to leave an accused in pre-trial
detention, this could only justify fears concerning a judge's
impartiality in special circumstances. Mr Salvado, however, did
not at the time make any fresh assessment capable of having a
decisive influence on his opinion of the merits; he did no more
than make a cursory examination, which disclosed no factors
telling in favour of Mr Saraiva de Carvalho's release.
40. In conclusion, Mr Salvado's participation in the adoption
of the judgment of 20 May 1987 did not undermine the impartiality
of the Criminal Court's Fourth Division, since the applicant's
fears cannot be regarded as having been objectively justified.
There has therefore been no breach of Article 6 para. 1
(art. 6-1).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no breach of Article 6 para. 1
(art. 6-1).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
22 April 1994.
Signed: Rolv RYSSDAL
President
Signed: For the Registrar
Herbert PETZOLD
Deputy Registrar