ECHR decision of March 31, 2020 in the case " Dos Santos Calado and others (Dos Santoc Calado and Others) v. Portugal "(aplication N 55997/14 and other aplications).
In 2014, the applicants were assisted in preparing their aplications. The aplications were subsequently consolidated and communicated to Portugal.
The case successfully considered aplications about the circumstances of declaring the applicants ' complaints inadmissible for consideration on the merits. The complaint was declared inadmissible for consideration on the merits. The case violated the requirements of article 6, paragraph 1, of the Convention for the protection of human rights and fundamental freedoms in respect of two complaints. The case did not violate the requirements of article 6, paragraph 1, of the Convention for the protection of human rights and fundamental freedoms in relation to one of the complaints.
The applicants in all four cases filed complaints with the constitutional court of Portugal, which declared them inadmissible on the merits and issued a brief decision on all of them by a single-judge court, on the grounds that the applicants ' complaints did not meet the conditions established by the Law "on the organization and functioning of the constitutional court of Portugal". One of the applicants did not submit an objection to this decision to the three-judge panel.
The applicants complained of a violation of their right of access to the court. The applicants in two separate complaints also claimed that there was a lack of impartiality of the three-judge panel.
POINT OF LAW
Regarding compliance with article 35, paragraph 1, of the Convention. Any complaint submitted to the constitutional court of Portugal for the purpose of considering a specific question of constitutionality must have concerned the constitutionality of either the rule of law or the judicial interpretation of the rule of law.
In any case against the state of Portugal concerning the question of the unconstitutionality of a rule of law or its interpretation, the applicant must first have filed an appropriate complaint with the constitutional court of Portugal in order to exhaust domestic remedies, as required by article 35, paragraph 1, of the Convention. However, a constitutional complaint against a court decision would necessarily have been rejected, so it could not be taken into account for the purpose of calculating the six-month period provided for in article 35, paragraph 1, of the Convention.
In the present case, the applicants ' complaint to the Portuguese constitutional court was declared inadmissible on the merits by a brief decision taken by a single judge. This decision came into force because one of the applicants did not appeal to the three-judge Committee.
Indeed, the complaint in question was not one in the strict sense of the word, but was an objection, a way of appealing a decision made by the judge-Rapporteur of the judicial panel, in order to obtain a review of the issue. However, the court considered that this mechanism would have allowed the applicants to appeal the decision in question.
First, objections were submitted to a panel of three judges of the constitutional court of Portugal, consisting of the Rapporteur judge who made the contested decision and two other judges, including either the President or the Vice-President of the constitutional court of Portugal. The reporting judge could make his decision without consulting his colleagues. Thus, the other judges were not aware of the decision, unless the person concerned raised an objection to the three-judge panel of the constitutional court of Portugal.
Secondly, the decision on the inadmissibility of the complaint could be supported by a unanimous decision of a panel of three judges. In the absence of consensus, the issue was referred to the plenary session of the court.
These arguments were sufficient for the European court of Justice to decide that an objection filed with a panel of three judges of the constitutional court of Portugal to the General decision of the judge-Rapporteur in the present case was an effective remedy within the meaning of article 35, paragraph 1, of the Convention in respect of the complaint of insufficient access to the court. Since one of the applicants did not submit his comments to the three-judge panel of the constitutional court of Portugal, the objection of the Portuguese authorities must be accepted.
The complaint was declared inadmissible for consideration on the merits (due to non-exhaustion of domestic remedies).
Regarding compliance with article 6, paragraph 1, of the Convention. The applicants only questioned the objective impartiality of the three-judge panel of the constitutional court of Portugal because of the participation of the judge-Rapporteur, who had previously ruled that the applicants ' constitutional complaints were inadmissible on the merits.
The principles of objective impartiality established by the case-law of the European Court of justice were not applicable in the present case, given the nature of the task of the three-judge panel when considering the objections raised. The Board was the body responsible for making a final decision on the admissibility of a constitutional complaint. Thus, the brief decision of the judge-Rapporteur was only a preparatory stage, and the decision entered into force only if the person concerned did not file an objection, that is, if he or she did not ask the judge-Rapporteur to review the decision together with two other judges, forming a judicial panel. Consequently, the decision-making procedure of the judge-Rapporteur was an integral part of the procedure for considering constitutional complaints, and the three-judge panel was not a fully Autonomous entity designed to deal with the issues raised in the present case.
The complaint was declared inadmissible for consideration on the merits as manifestly unfounded.
The European Court also held unanimously that there had been a violation of article 6, paragraph 1, of the Convention on account of insufficient access to the court in respect of two complaints, since the Portuguese constitutional court had been too formal in declaring constitutional complaints inadmissible on their merits due to non-compliance with the requirements provided for by law.
In addition, the court unanimously held that there was no violation of article 6, paragraph 1, of the Convention in respect of one of the complaints, since the finding that the complaint was inadmissible on the merits, since it did not raise the question of the unconstitutionality of the interpretation of the rule of law, did not violate the essence of the right of access to a court.
In the application of article 41 of the Convention. The European Court awarded each of the applicants 3,300 euros in compensation for non-pecuniary damage.