Investigation of a paedophile ring: violation of the right to liberty and security of a former MP held in pre-trial detention

JUDGMENT 

Fernandes Pedroso v. Portugal 12.6.2018 (no. 59133/11) 

see here

SUMMARY

The case concerned a criminal investigation into a paedophile ring, and in particular the pre-trial
detention of a former Socialist Party MP, Mr Fernandes Pedroso, who had been suspected of having
had sexual relations with minors accommodated by the Casa Pia institution, a public institution
responsible for running schools, training centres and boarding schools for children and teenagers
from deprived backgrounds.

The Court found in particular that:

– at the time when the investigating judge had given his decision on Mr Fernandes Pedroso’s
continued pre-trial detention, there had been no plausible suspicions that the applicant had sexually
abused minors; the arguments used to justify his detention had not been relevant or sufficient; and
the judicial authorities had failed to take into account the possibility of implementing alternative
measures to pre-trial detention;

– using the anonymity method (concealing the victims’ identities) vis-à-vis the crucial pieces of
evidence to which Mr Fernandes Pedroso had been denied access would have been sufficient to
protect the victims’ privacy;

– in rejecting Mr Fernandes Pedroso’s compensation claim for unlawful detention, the domestic
courts had failed to interpret and apply domestic law in the spirit of Article 5 §§ 1 and 4 of the
Convention. The Court noted in that connection that Mr Fernandes Pedroso had no remedy in
domestic law enabling him to claim compensation after delivery of the present judgment.

PROVISIONS 

Article 5 § 1

Article 5 § 2

Article  5 § 4

Article  5 § 5

PRINCIPAL FACTS 

The applicant, Paulo José Fernandes Pedroso, is a Portuguese national who was born in 1965 and
lives in Lisbon (Portugal). At the material time he was a Socialist Party MP. He had also been Minister
for Labour and Solidarity from March 2001 to April 2002.

In May 2003, suspected of having had sexual relations with minors accommodated by the Casa Pia
institution, Mr Fernandes Pedroso was placed in pre-trial detention, and then released in October
2003 under judicial supervision.

In December 2003, ten persons, including Mr Fernandes Pedroso, were formally charged with
sexually abusing minors. Mr Fernandes Pedroso appealed against that decision, and in May 2004
benefited from a decision not to commit him for trial, as the investigating authority considered,among other things, that there were serious doubts about the identification of Mr Fernandes Pedroso and that the victims had been wrong on that account. The court of appeal upheld the decision not to commit him for trial. In October 2004 Mr Fernandes Pedroso filed an action for damages against the State for unlawful detention on the basis of Article 225 §§ 1 and 2 of the Code of Criminal Procedure (CPP).

The Lisbon Court partly allowed his claim, but the court of appeal set that decision aside on the grounds that Mr Fernandes Pedroso’s pre-trial detention had not been manifestly unlawful, nor had it been based on a blatant error. The Supreme Court dismissed Mr Fernandes Pedroso’s appeal on points of law.

THE DECISION OF THE COURT 

Article 5 § 1 (right to liberty and security of person)

Lawfulness of the pre-trial detention: the Court considered that Mr Fernandes Pedroso’s arrest had
been based on an arrest warrant issued by an investigating judge, that his placement in pre-trial
detention had indeed been prescribed by law (Article 202 CPP), and that the non-observance of the
rule concerning “random” distribution of cases among the judges of the court did not amount to a
“gross and obvious irregularity” in the exceptional sense indicated by the Court’s case-law.

Existence of plausible suspicions of offences: the Court held that when the investigating judge gave
his decision of 15 July 2003 on Mr Fernandes Pedroso’s continued pre-trial detention, there had
been no plausible suspicions that the applicant had sexually abused minors, given that he had not
been personally identified and that the arguments used to justify the detention had been neither
relevant nor sufficient, as concluded by the court of appeal in its 8 October 2003 decision.

Alternatives to pre-trial detention: the Court noted that the domestic judicial authorities had failed
to take into account the possibility of implementing alternative measures to pre-trial detention.
Consequently, the Court ruled that Mr Fernandes Pedroso’s pre-trial detention had been
incompatible with the requirements of Article 5 § 1 of the Convention and that there had been a
violation of that provision.

Article 5 § 4 (lack of access to specific evidence on file)

Mr Fernandes Pedroso had twice been denied access to the victims’ statements and to the reports
on the medical examinations which the latter had undergone. In fact, those statements and reports
had been vitally important because they provided the basis for the criminal offences of which the
applicant was suspected, justifying the imposition of the impugned pre-trial detention. The
investigating judge had justified his refusal with investigative confidentiality (segredo de justiça), the
confidentiality of medical expert reports and the victims’ highly vulnerable position.

The Court considered that where there was a conflict between two fundamental rights – the
applicant’s right to contest the lawfulness of his detention (Article 5 § 4) and the protection of the
privacy of the victims (Article 8 of the Convention). With the additional need to ensure the proper
conduct of the investigation, a fair balance could have been struck between the competing interests
by concealing the identities of the victims and the elements liable to identify them.

Furthermore, the investigating judge had used that very anonymity method in his request to the
President of Parliament, probably considering it sufficient to protect the private lives of the victims.
However, there had been nothing to prevent the authorities from following the same anonymity
procedure as regards the pieces of evidence to which the applicant had demanded access in order to
challenge the lawfulness of his detention.

The Court could not see why the procedure for rendering
the prosecution witnesses anonymous had been possible vis-à-vis the request to the President of
Parliament but had been impossible in the same set of proceedings for the defence of the accused.
Consequently, it found that although the grounds relied upon by the investigating judge to justify his
refusal to supply copies of the victims’ statements and of the medical reports had been legitimate,
they had not been sufficient, because another way could have been found to balance the competing
interests. It therefore considered that the refusal to provide the applicant with copies of the
aforementioned documents had breached the fairness requirement set out in Article 5 § 4 of the
Convention.

Article 5 § 5 (right to compensation)

Mr Fernandes Pedroso’s compensation claim had been dismissed by the Lisbon court of appeal and
the Supreme Court, which had rejected the argument that the pre-trial detention had been
unlawful. Those courts had considered that the impugned detention had not been based on a
blatant error. Nor had they considered the question of alternatives to pre-trial detention or the
proportionality of that measure, which – the Court reiterated – should only be implemented as a last
resort. As for the lack of access to specific evidence on file, even though the Supreme Court had
acknowledged that the rights of the defence could have been affected, it had deemed that such an
irregularity had not been obvious, blatant or manifest, as required by Article 225 § 1 CPP.

The Court considered that the domestic courts had not interpreted or applied domestic law in the
spirit of Article 5 §§ 1 and 4 of the Convention, and noted that after the delivery of the judgment in
question, there was no remedy under domestic law by which Mr Fernandes Pedroso could claim
compensation. Consequently, having regard to the domestic courts’ restrictive interpretation
concerning Mr Fernandes Pedroso’s claim for compensation for unlawful detention, the Court found
that there had been a violation of Article 5 § 5 of the Convention.

Other articles

The Court rejected Mr Fernandes Pedroso’s complaint concerning Article 5 § 2 (he had alleged that
he had not been informed of the reasons for his arrest) as being manifestly ill-founded, and the
complaint under Article 5 § 4 (length of the proceedings concerning judicial review of his placement
in pre-trial detention) for non-exhaustion of domestic remedies.

Article 41 (just satisfaction)

The Court held, by four votes to three, that Portugal was to pay the applicant 14,000 euros (EUR) in
respect of pecuniary damage, and, unanimously, that it was to pay EUR 13,000 in respect of
non-pecuniary damage and EUR 41,555 in respect of costs and expenses.

Separate opinion

Judges Yudkivska, Motoc and Paczolay expressed a joint declaration of partial dissent, which is
annexed to the judgment(echrcaselaw.com editing). 


ECHRCaseLaw

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