[TRANSLATION]

THE FACTS

The applicant [Aníbal Armando Inocêncio] is a Portuguese national who was born in 1935 and lives at Covilhã (Portugal). He is a lawyer and acted in person before the Court.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 20 November 1995 the Covilhã Municipal Council decided to impose an administrative fine (coima) of 500,000 Portuguese escudos (PTE) on the applicant for carrying out work on his house without obtaining the necessary building permit – an administrative offence (contra-ordenação) under Legislative Decree no. 445/91.

On 11 December 1995 the applicant challenged that decision in the Covilhã District Court.

On 16 March 1996 the District Court upheld the fine; however, its decision was quashed by the Coimbra Court of Appeal (Tribunal da Relação) in a judgment of 25 September 1996, on the ground that State Counsel had not been present at the hearing in the Covilhã District Court.

In an order of 9 December 1996 the judge of the Covilhã District Court set the case down for hearing on 6 February 1997 and requested the applicant to appoint a lawyer, stating that it was “not acceptable to conduct one’s own case in criminal proceedings”. On 9 January 1997 the applicant appealed against the order, alleging, in particular, a breach of Article 6 § 3 (c) of the Convention. In an order of 4 February 1997 the judge declared the appeal admissible and decided that it should not be heard by the appellate court until a decision had been given on the merits of the case.

At the hearing on 6 February 1997 the judge, noting that the applicant was absent and considering his presence to be necessary, adjourned the hearing until 27 February 1997.

At the hearing on 27 February 1997 the judge, noting that the applicant was in the section of the courtroom reserved for lawyers, asked him to take his place in the dock. The applicant replied that he was a lawyer and reaffirmed his intention to conduct his own case. The judge again asked him to take his place in the dock and, when the applicant again refused to do so, decided to exclude him from the courtroom and to appoint Mr P.C. as his official defence counsel. Mr P.C. requested an adjournment of five minutes in order to confer with the applicant, and the judge allowed his request. Once that time had elapsed, the hearing resumed in the applicant’s absence. After hearing evidence from a witness and the addresses of State Counsel and counsel for the defence, the judge ordered the applicant to return to the courtroom and delivered his judgment, upholding the fine of PTE 500,000.

On 14 March 1997 the applicant, acting in person, appealed against that decision to the Coimbra Court of Appeal. He submitted, in particular, that his right to defend himself in person had been infringed. He also stated that the court had not heard evidence from the two witnesses called by him and argued that that had amounted to a further infringement of his defence rights. He relied, in particular, on Article 6 §§ 1 and 3 (b) and (c) of the Convention.

In a judgment of 11 February 1998 the Court of Appeal dismissed that appeal and the one he had lodged on 9 January 1997. It stated, inter alia:

“... It is still generally accepted – and this court has consistently held ... – that the accused must be assisted by counsel... The purpose of the defence in criminal proceedings is not merely to assist the accused but also to serve the interests of justice... Article 64 of the Code of Criminal Procedure implies that an accused cannot defend himself in person; that assertion has already been upheld by this Court of Appeal and the Lisbon Court of Appeal... Even where the accused has had appropriate legal training, statute law requires him to be assisted by counsel, who will be required to retain his composure, since it may be assumed that the accused would display a certain degree of agitation which would be harmful to his case and to the proper administration of justice... It follows that, where purely technical steps need to be taken by the defence, counsel cannot be replaced by the accused, even if the latter is a lawyer. In the instant case, the appeal was not filed by counsel for the defence; consequently, it cannot be entertained.”

No appeal lay against that decision.

B.  Relevant domestic law and practice

Legislative Decree no. 445/91 of 20 November 1991 on the rules governing construction work by private individuals made it an administrative offence to carry out work on a house without obtaining the relevant permit from the local council (Article 54 § 1 (a)). Under Article 54 § 2, the maximum administrative fine that could be imposed for a breach of that provision was PTE 20,000,000.

The rules governing administrative offences are laid down in Legislative Decree no. 433/82 of 27 October 1982. Article 1 of the Legislative Decree defines an administrative offence as an unlawful and reprehensible (censurável) act, contravening a legal provision which makes the offender liable to an administrative fine. The amount of the fine must be determined in each case by reference to the seriousness of the offence, the degree of guilt (culpa) attributable to the offender, the offender’s financial circumstances and the financial benefit he derived from carrying out the unlawful act in question (Article 18). Administrative fines may not in any circumstances be replaced by a custodial sentence. They may only give rise to enforcement proceedings (Article 89). Lastly, Legislative Decree no. 433/82 provides that the Criminal Code and the Code of Criminal Procedure are to apply, on a subsidiary basis, in relation to procedural matters.

Article 32 of the Constitution, entitled “Safeguards in criminal proceedings”, provides in paragraph 8 that persons accused in proceedings relating to an administrative offence must be allowed to exercise their defence rights.

COMPLAINTS

Relying on Article 6 §§ 1, 2 and 3 (c) and (d) of the Convention, the applicant complained that he had not had a fair hearing.

He complained, in particular, that he had not been allowed to defend himself in person.

He also complained that the Covilhã District Court had decided to hear evidence only from the witness called by the prosecution and not from the two witnesses called by him.

THE LAW

The applicant complained that he had not had a fair hearing, in breach of Article 6 §§ 1, 2 and 3 (c) and (d) of the Convention, the relevant parts of which provide:

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

1.  Exhaustion of domestic remedies

The Government objected at the outset that domestic remedies had not been exhausted. They noted that the Coimbra Court of Appeal had not entertained the applicant’s appeal, on the ground that he was not represented by a lawyer. Arguing that the Convention institutions had consistently held that domestic remedies had not been not exhausted if the appeal in issue had been dismissed as a result of a procedural error on the applicant’s part, the Government concluded that the application should be declared inadmissible on that ground.

The applicant maintained that the Court of Appeal’s refusal to entertain his appeal was in itself a violation of Article 6 § 3 (c) of the Convention.

The Court observes that this question is identical with the main issue raised by the application, namely whether the applicant was entitled to defend himself in person, within the meaning of Article 6 § 3 (c) of the Convention. There is therefore no call to examine the Government’s objection separately.

2.  Applicability of Article 6

The Government further maintained that Article 6 was not applicable to the proceedings in issue. They argued that the instant case had not concerned a “criminal charge” within the meaning of that provision of the Convention. In their submission, the legislation on administrative offences could not be viewed in terms of the “decriminalisation” process which had been in issue in the case of Öztürk v. Germany (judgment of 21 February 1984, Series A no. 73). Instead, it belonged to a new branch of law created in order to deal with certain situations not meriting protection by the criminal law. The Government maintained that the fines in question could not be equated with criminal fines, especially as they could not in any circumstances be replaced by a custodial sentence.

The applicant disputed the Government’s submissions. He argued, firstly, that the Constitution itself – in Article 32, concerning the rights of the defence – treated proceedings relating to administrative offences as criminal proceedings. The Government were consequently not entitled to remove matters which constitutional law treated as criminal from the protection afforded by Article 6 of the Convention. Lastly, the applicant observed that, in any event, his civil rights and obligations had also been in issue in the impugned proceedings, so that Article 6 was applicable at least under its civil head.

The Court refers to its established case-law that in ascertaining whether there was a “criminal charge”, regard must be had to three criteria: the legal classification of the measure in question in national law, the very nature of the measure, and the nature and degree of severity of the “penalty” (see, as the most recent authority, Escoubet v. Belgium [GC], no. 26780/95, § 32, ECHR 1999-VII). Furthermore, these criteria are alternative and not cumulative ones: for Article 6 to apply in respect of the words “criminal charge”, it suffices that the offence in question should by its nature be “criminal” from the point of view of the Convention, or should have made the person concerned liable to a sanction which, by virtue of its nature and degree of severity, belongs in general to the “criminal” sphere. This does not prevent a cumulative approach from being adopted where the separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a “criminal charge” (see the Garyfallou AEBE v. Greece judgment of 24 September 1997, Reports of Judgments and Decisions 1997-V, p. 1830, § 33).

With regard to the first of these criteria, the Court accepts the Government’s argument that the offence of which the applicant was accused fell within the ambit of legislation on administrative offences and not of the criminal law; nevertheless, it has not lost sight of the fact that there is no absolute partition between the two types of legislation, as is borne out by the wording of Article 32 of the Constitution and by the fact that the provisions of ordinary law governing criminal procedure are applied, on a subsidiary basis, to proceedings concerning administrative offences, as they were in the instant case. In any event, the indications furnished by domestic law have only a relative value. The second criterion stated above – the very nature of the offence, considered also in relation to the nature of the corresponding penalty – represents a factor of appreciation of greater weight (see the Öztürk judgment cited above, p. 19, § 52).

Thus, according to the ordinary meaning of the terms, the criminal law generally covers offences rendering the perpetrator liable to penalties which are intended, inter alia, to act as a deterrent and which usually consist of custodial sentences and fines (see Escoubet, cited above, § 36).

With regard to the nature of the offence, it would appear that the requirement to obtain a permit before carrying out construction work should be regarded as a means of controlling the use of property for the purposes of a balanced town-planning policy. A penalty for failing to comply with such a requirement cannot constitute a punitive criminal measure of general application to all citizens. This aspect is therefore not sufficient in itself for the penalty in issue to be regarded as inherently criminal.

With regard to the nature and severity of the penalty, the Court notes, firstly, that the administrative fine in question could not in any circumstances be replaced by a custodial sentence in the event of non-payment. In that respect, the instant case is to be distinguished from other cases in which the Court has held Article 6 to be applicable (see, in particular, the Garyfallou AEBE judgment cited above, p. 1831, § 34). Admittedly, the maximum fine that could be imposed was PTE 20,000,000, a sum that is certainly substantial. However, it should be noted that there was no threat of criminal proceedings being brought against the applicant in place of the fine in question, unlike the position in the cases of Deweer v. Belgium (judgment of 27 February 1980, Series A no. 35, p. 23, § 45) and Société Stenuit v. France (judgment of 27 February 1992, Series A no. 232-A, opinion of the Commission, p. 13, § 62).

In conclusion, these aspects, taken as a whole, are not significant enough for the measure imposed on the applicant to qualify as a “criminal” penalty, within the meaning of Article 6 of the Convention. That provision is therefore not applicable under its criminal head.

With regard to the applicant’s allegation that Article 6 was applicable under its civil head, the Court notes that the proceedings in the instant case were manifestly not concerned with the determination of “civil rights and obligations”.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

INOCENCIO v. PORTUGAL DECISION


INOCEncio v. portugal DECISION