FOURTH SECTION

CASE OF MARTINS O’NEILL PEDROSA v. PORTUGAL

(Application no. 55214/15)

JUDGMENT

STRASBOURG

14 February 2017

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Martins O’Neill Pedrosa v. Portugal,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	András Sajó, President,
	Vincent A. De Gaetano,
	Nona Tsotsoria,
	Paulo Pinto de Albuquerque,
	Krzysztof Wojtyczek,
	Egidijus Kūris,
	Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 24 January 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 55214/15) 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”) by a Portuguese national, Mr Rafael Martins O’Neill Pedrosa (“the applicant”), on 28 October 2015.
2.  The applicant was represented by Mr H. Garcia, a lawyer practising in Mafra. The Portuguese Government (“the Government”) were represented by their Agent, Ms M. F. da Graça Carvalho, Deputy Attorney General.
3.  The applicant alleged that the lawfulness of his pre-trial detention had not been reviewed “speedily”, as required by Article 5 § 4 of the Convention.
4.  On 22 January 2016 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1995. According to the last information received by the Court on 6 October 2016, the applicant is detained in Lisbon.
6.  On 5 December 2013 criminal proceedings were initiated against the applicant by the public prosecutor of the Department of Investigation and Prosecution (Departamento de Investigação e Ação Penal) in Sintra in respect of allegations of him having committed the crimes of coercion (coação), aggravated attacks upon the physical integrity of a person (ofensas à integridade física qualificada), rape (violação), and failing to assist a person in danger (omissão de auxílio).
7.  On 2 June 2014 the public prosecutor issued a European arrest warrant (“EAW”) in respect of the applicant in order to secure his presence before a judicial authority to be questioned (primeiro interrogatório judicial).
8.  On 28 August 2014 the applicant was arrested in the United Kingdom. Under the EAW issued by the Portuguese authorities, he was surrendered to the Portuguese authorities on 27 February 2015.
9.  On 27 February 2015, the applicant was given the status of defendant in the criminal proceedings against him (constituição de arguido) and questioned by the investigating judge (primeiro interrogatório judicial). On the same day, the investigating judge remanded the applicant in custody.
10.  On 19 March 2015 the applicant lodged an appeal with the Lisbon Court of Appeal, challenging the lawfulness of the decision remanding him in custody, pursuant to Article 219 § 1 of the Code of Criminal Procedure.
11.  On 2 April 2015 the investigating judge declared the appeal admissible and requested that the public prosecutor be asked to submit observations on the applicant’s appeal.
12.  On 27 April 2015 the public prosecutor submitted observations on the applicant’s appeal.
13.  On 29 April 2015 the investigating judge ordered that the applicant be notified of the public prosecutor’s observations and that the file be sent to the Lisbon Court of Appeal.
14.  On 4 May 2015 the file was sent to the Lisbon Court of Appeal. On 11 May 2015 it was received and distributed.
15.  On 13 May 2015 the public prosecutor issued an opinion on the appeal, pursuant to Article 416 of the Code of Criminal Procedure. The applicant was subsequently notified of the opinion and given ten days to reply, pursuant to Article 417 of the Code of Criminal Procedure.
16.  On an unknown date, a judge rapporteur appointed to the case made a preliminary examination of the applicant’s appeal and prepared a draft decision which was presented to two other judges. The judge rapporteur’s analysis of the appeal was afterwards put on the agenda for discussion by the judge rapporteur and the two other judges.
17.  On 24 June 2015 the applicant lodged a habeas corpus application with the Supreme Court, claiming that the lack of analysis of his appeal in respect of the lawfulness of the decision placing him in pre-trial detention had violated Article 5 § 4 of the Convention. He further argued that the time-limit of thirty days established under Article 219 § 1 of the Code of Criminal Procedure had not been complied with. Therefore, his pre-trial detention had been unlawful.
18.  On 2 July 2015 the Supreme Court dismissed the applicant’s habeas corpus application. Examining the effects of the thirty-day time-limit on pre-trial detention orders, it considered that the thirty-day time-limit on pre-trial detention orders simply constituted a guiding principle illustrating the urgency of such matters. It further noted that the lack of a speedy review of an order remanding a person in custody did not constitute a ground for a habeas corpus application under Article 222 of the Code and pointed out that Article 219 § 1 did not, in any case, stipulate the maximum length of any pre-trial detention. In this regard, the non-compliance with the thirty-day time-limit did not mean that the applicant’s pre-trial detention had been unlawful.
19.  On 2 July 2015 the Lisbon Court of Appeal dismissed the applicant’s appeal and upheld the investigating judge’s decision of 27 February 2015 to hold him in pre-trial detention.
Article II.	II.  RELEVANT DOMESTIC LAW AND PRACTICE
Section 2.01	A.  The relevant provisions of the Portuguese Code of Criminal Procedure
20.  Article 108 of the Portuguese Code of Criminal Procedure provides for interlocutory proceedings to expedite criminal proceedings. The relevant part of the provision reads as follows:
“1. When the time-limits provided by law in respect of any stage of the proceedings are exceeded, the public prosecutor, the defendant, the assistant to the public prosecutor or the civil parties may lodge an application for an order to expedite the proceedings.”
21.  Under Article 219 § 1, an appellate court has a maximum of thirty days in which to rule on the lawfulness of a pre-trial detention order, starting from the date on which it receives the relevant file.
22.  Under Article 222 § 1, anyone who is illegally held in pre-trial detention may lodge a habeas corpus application with the Supreme Court.
23.  Under Article 222 § 2 pre-trial detention is unlawful if a) it was ordered by an authority that does not have authority to do so; b) the law does not allow the ordering of pre-trial detention for the reasons cited; or c) it has exceeded the time-limits established by law or judicial decision.
24.  Under Article 416 § 1, before a case is submitted to a rapporteur it is given to the public prosecutor attached to the court of appeal for an opinion (vista). Under Article 417 § 2 the defendant shall be notified of the public prosecutor’s opinion; the defendant will then be given ten days to reply. After the public prosecutor has given an opinion, under Article 417 § 1 the case is given to a judge rapporteur for a preliminary examination.
Section 2.02	B.  Case-law of the Supreme Court of Justice
25.  In a judgment of 16 March 2011 the Supreme Court of Justice stated that Article 219 § 1 of the Code on Criminal Procedure (which concerns appeals against a detention order) did not constitute a mandatory legal provision. On the contrary, it constituted merely a guiding principle in respect of the conduct of such proceedings: that is to say that decisions on detention orders and related appeals should be considered urgent and the analysis of such appeals should not be delayed. It further considered that if the thirty-day time-limit were supposed to have been considered binding, a legal provision stipulating the direct consequences of any non-compliance should have been established.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
26.  The applicant complained that his request for a review of the lawfulness of his pre-trial detention was not examined speedily, as provided in Article 5 § 4 of the Convention, which reads as follows:
“4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Section 3.01	A.  Admissibility
(a)	1.  The parties’ submissions
27.  The Government submitted that the applicant had not exhausted the relevant domestic remedies. He had failed to lodge an application for an order to expedite the proceedings (pedido de aceleração processual), pursuant to Article 108 of the Code of Criminal Procedure, before the High Council of the Judiciary (conselho superior da magistratura) or the Attorney-General (procurador geral da República). They contended that this was a mechanism which allowed parties to proceedings to seek their acceleration when the time-limits foreseen by law for each stage of such proceedings had been exceeded. Referring to the case of Tomé Mota v. Portugal ((dec.), no. 32082/96, ECHR 1999‑IX), they argued that the Court had already considered that this was a remedy to be exhausted in cases of excessive length of criminal proceedings.
28.  The applicant disagreed. He submitted that a request for a review of the lawfulness of an order of pre-trial detention should be analysed within a reasonable time; if that period of time were exceeded then the pre-trial detention in question would be unlawful. In this regard, the applicant stated that the application for an order to expedite the proceedings could not be seen as a remedy to be exhausted. Rather it was the habeas corpus request that constituted such a remedy, on account of the unlawfulness of the pre-trial detention; accordingly, the applicant had used that remedy.
(b)	2.  The Court’s assessment
29.  The Court reiterates that the rule on exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to first use the remedies that are normally available and sufficient under the domestic legal system to enable them to obtain redress for the breaches they have alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. However, Article 35 § 1 does not require that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI).
30.  In the present case the Government have argued that an application for an order to expedite the proceedings had been open to the applicant to pursue his complaint concerning the length of the request for a review of the lawfulness of his pre-trial detention under Article 108 of the Code of Criminal Procedure.
31.  The Court observes that the case-law established by Tomé Mota, as invoked by the Government, concerns the nature of the right established under Article 6, which substantially differs from the nature of Article 5 § 4, which concerns a review of a decision restricting an applicant’s freedom. The Court has already held that Article 5 § 4, concerning issues of liberty, requires particular expedition (Hutchison Reid v. the United Kingdom, no. 50272/99, § 79, ECHR 2003‑IV).
32.  Moreover, the Government did not refer to any instances in which Article 108 was successfully invoked with regard to the acceleration of an appeal against an order of pre-trial detention, and neither have they submitted any relevant case-law in that regard.
33.  In the light of the above, the Court considers that pursuing the acceleration of proceedings would not have provided the applicant with a speedy review of the lawfulness of his detention. It follows that this application cannot be rejected for non-exhaustion of domestic remedies.
34.  The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and nor is it inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
(a)	1.  The parties’ submissions
35.  The applicant submitted that on 27 February 2015 the investigating judge had reviewed the lawfulness of his detention under the EAW. Only afterwards, on the same day, had he been questioned (primeiro interrogatório judicial), given the status of defendant in the proceedings (constituição de arguido), and remanded in custody by the investigating judge. Therefore, the jurisdictional review of the decision which had remanded him in custody had only been undertaken at a later date by a superior court [the Lisbon Court of Appeal] after the relevant appeal under Article 219 § 1 of the Code of Criminal Procedure had been lodged. The analysis of his appeal had lasted one hundred and five days; thus, there had been a violation of Article 5 § 4 of the Convention.
36.  The Government submitted that the decision which had confirmed the lawfulness of the applicant’s detention under the EAW and which had ordered that he be remanded in custody had been delivered by an investigating judge who, under Portuguese legislation acts as guarantor of fundamental freedoms in criminal investigations. The investigating judge had considered that the legal requirements in respect of the application of the measure of pre-trial detention in respect of the applicant had been met. Consequently, the judicial review required by Article 5 § 4 of the Convention had been undertaken by virtue of his intervention.
37.  The Government further argued that the review of the decision to remand the applicant in custody had determined that the legal requirements of that decision, which had been adopted by a first instance judge, should have been reassessed by a superior court. The situation was thus different from that in which what was at stake was access to a first-instance court for a judicial review of a detention order.
38.  The Government submitted that the thirty-day time-limit provided by Portuguese legislation in respect of an analysis of an appeal against an order of pre-trial detention was simply a guiding principle. Thus, if it was not complied with such detention would not automatically become unlawful. In the instant case the period of time which had elapsed between the moment at which the appeal had been admitted by the superior court and the date at which a decision had been adopted had amounted to 50 days and had been justified by the need to comply with procedural rules, such as the need to respect the principle of adversarial procedure and the time required to have a decision adopted by a collective body of judges. The Government acknowledged that the period of time elapsed had exceeded the thirty-day time-limit established under domestic law. However, given that that time-limit merely constituted a guiding principle, the period of time elapsed was not excessive and there had therefore not been a violation of Article 5 § 4 of the Convention.
(b)	2.  The Court’s assessment
(i)	(a)  General principles
39.  The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to detained persons the right to institute proceedings challenging the lawfulness of their detention, also provides their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and the ordering of its termination if it proves unlawful (see Idalov v. Russia [GC], no. 5826/03, § 154, 22 May 2012, and Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000‑III).
40.  Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention. However, where domestic law provides for appeal, the appellate body must also comply with the requirements of Article 5 § 4, for instance as concerns the speediness of the review by appeal proceedings. At the same time, the standard of “speediness” is less stringent when it comes to the proceedings before the court of appeal (see Lebedev v. Russia, no. 4493/04, § 96, 25 October 2007).
41.  Although the number of days taken by the relevant proceedings is obviously an important element, it is not necessarily in itself decisive for the question of whether a decision has been delivered with the requisite speed. What is taken into account is the diligence shown by the authorities, the delay attributable to the applicant and any factors causing delay for which the State cannot be held responsible (see Shakurov, v. Russia, no. 55822/10, § 180, 5 June 2012). The question of whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case (see Idalov, cited above, § 154; and Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000‑XII).
(ii)	(b)  Application of those principles in the present case
42.  In the instant case the applicant was remanded in custody by the order of 27 February 2015 of the investigating judge. The applicant’s appeal against that decision was lodged on 19 March 2015 with the Lisbon Court of Appeal. It was ruled admissible by the investigating judge on 2 April 2015, and on the same day the latter requested observations from the public prosecutor.
43.  After receiving observations from the public prosecutor on 27 April 2015 and notifying the applicant of those observations on 29 April 2015, the investigating judge ordered that the file be submitted to the Lisbon Court of Appeal (see paragraphs 12-13 above).
44.  On 4 May 2015 the file was submitted to the Lisbon Court of Appeal, the second-instance court in such cases. Having received the file on 11 May 2015, the Lisbon Court of Appeal examined the appeal on 2 July 2015 – that is to say fifty-one days after receiving it – thus exceeding the thirty-day time-limit established under Article 219 § 1 of the Code of Criminal Procedure, taking into account the fact that, under this provision, the relevant period of time starts to run from the date on which the appeal is received by the court of appeal (see paragraph 21 above).
45.  For the Court, however, the relevant period runs from when the application was lodged to the date in which a decision concerning the lawfulness of the detention is adopted (see, mutatis mutandis, Musiał v. Poland [GC], no. 24557/94, § 43, ECHR 1999‑II Van der Leer v. the Netherlands, 21 February 1990, § 35, Series A no. 170‑A). It thus observes that it took a total of one hundred and five days from the moment the application was lodged on 19 March 2015 for the Lisbon Court of Appeal to adopt a decision on the applicant’s appeal challenging the lawfulness of his detention (see paragraphs 10 and 19 above).
46.  Taking into account the criteria mentioned above (see paragraph 42 above), the Court has found, for example, that the requirement for a decision to be given “speedily” in respect of an appeal against a detention order was breached in the following cases: Rehbock (cited above, § 85) – twenty-three days; Mamedova v. Russia, (no. 7064/05, 1 June 2006, § 96) – thirty-six days; Kadem v. Malta (no. 55263/00, 9 January 2003, § 44) – seventeen days; and Shakurov (cited above, § 187) – thirty-four days. This shows that the time taken by the Lisbon Court of Appeal to adopt a decision was manifestly excessive.
47.  Furthermore, in the Court’s opinion, the issue before the appellate court was not overly complex, and nor is there anything in the material before it to suggest that the applicant, having lodged his appeal, caused delays in its examination.
48.  Moreover, the Government did not provide any justification for the delays in the appeal proceedings. For example, no explanation was provided as to why the investigating judge only delivered a decision on the admissibility of the appeal fourteen days after it had been lodged, and nor was any explanation provided for the fact that the public prosecutor only submitted observations in that regard on 27 April 2015. In addition, no explanation was provided as regards the period of fifty-one days which elapsed between the file being received by the Lisbon Court of Appeal and the decision being delivered, which the Government considered to have exceeded the thirty-day time-limit provided by Article 219 § 1 of the Code of Criminal Procedure. The compliance with the adversarial principle pointed out by the Government cannot alone justify such an excessive delay.
49.  The Court reiterates that it is incumbent on the respondent State to organise its legal system in such a way which allows for the speedy examination of detention-related issues (Shakurov, cited above, § 186). The Court is concerned about the existence in domestic legal orders of legal provisions establishing non-binding time-limits in appeal proceedings where an individual’s personal liberty is at stake. It considers that such provisions are incompatible with States’ obligations under Article 5 § 4 of the Convention. It further reiterates that time-limits in respect of judicial reviews against a detention order should be binding and set in accordance with the case-law of the Court.
50.  In the light of the foregoing, the Court considers that the time it took the Lisbon Court of Appeal to examine the applicant’s appeal against the detention order cannot be considered compatible with the “speediness” requirement of Article 5 § 4.
51.  The Court consequently holds that there has been a violation of Article 5 § 4 of the Convention.
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
52.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Section 4.01	A.  Damage
53.  The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.
54.  The Government considered the applicant’s claim for non-pecuniary damages excessive.
55.  Having given due consideration to all the circumstances of the present case the Court accepts that the applicant has suffered some non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,250 in respect of non-pecuniary damage.
Section 4.02	B.  Costs and expenses
56.  The applicant also claimed EUR 1,750 for the costs and expenses incurred before the Court.
57.  The Government considered the applicant’s claim for costs and expenses excessive. In addition, it considered that no amount under this head should be awarded to the applicant since he had failed to submit any documents proving that such costs and expenses had actually been incurred.
58.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court dismisses the claim for costs and expenses as it has not been substantiated by any documents.
Section 4.03	C.  Default interest
59.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 5 § 4 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,250 (three thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 14 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Marialena Tsirli	András Sajó
	Registrar	President