The excessive formalism of the Constitutional Court deprived the applicants of their right of access to a court
Dos Santos Calado and others v. Portugal 31.03.2020 (no. 55997/14, 6843/16, 78841/16, and 370617)
The cases concerned Portuguese nationals who complained about their appeals to the Constitutional
Court being declared inadmissible. Applications nos. 55997/14 and 68143/16 also concerned the
alleged lack of impartiality of the three-judge committee of the Constitutional Court.
The Court found in particular that in the two cases in which a violation was found, the Constitutional
Court had displayed excessive formalism in applying the legislative provisions forming the basis for
its jurisdiction to hear appeals. Consequently, that court had deprived the applicants of their right of
access to a court.
In the first application the applicant had brought an action in the administrative courts contesting
the amount of her retirement pension. Her claims were dismissed. The applicant lodged an appeal
with the Constitutional Court which was declared inadmissible. She then lodged an objection with
the three-judge committee of the Constitutional Court, which was dismissed.
The applicants in the second application are officials of the Roads Department who were acting as de
facto inspectors. They complained of the lack of regulations governing their careers. Their complaint
was dismissed by the Central Administrative Court for the North region (“the Central Administrative
Court”) and by the Supreme Administrative Court. The applicants lodged an appeal with the
Constitutional Court which was declared inadmissible. That decision was upheld by the three-judge
The applicant in the third application, who had been convicted of aggravated fraud, complained of a
breach of the ne bis in idem principle. His complaint was dismissed by the courts at first and second
instance. He lodged an appeal with the Constitutional Court, which declared it inadmissible. The
three-judge committee upheld that decision.
Finally, in the fourth application, the applicant, who had been sentenced to a suspended term of
three years and two months’ imprisonment for domestic violence, contested, among other things,
the establishment of the facts leading to his conviction and the interpretation of the law. He also
argued that his prosecution for domestic violence had become statute-barred. Lastly, he alleged that
his conviction had breached the prohibition of the retroactive application of the criminal law and the presumption of innocence. The first and second-instance courts dismissed his complaints. He lodged an appeal with the Constitutional Court which was declared inadmissible. He did not submit an objection to the committee of three judges.
THE DECISION OF THE COURT…
Article 6 § 1 (access to a court)
Application no. 55997/14 (Dos Santos Calado v. Portugal)
The applicant had raised two issues in her appeal to the Constitutional Court; the first concerned the
unconstitutionality of a legal rule while the second related to the unlawfulness of the rule in
question. In both cases the applicant had relied on the same subsection of section 70(1) of the
Institutional Law on the Constitutional Court (“the LOTC”) forming the basis for the Constitutional
Court’s jurisdiction to hear appeals.
The Court noted that the Constitutional Court had declared inadmissible the part of the applicant’sappeal relating to the unlawfulness of the legal rule, on the grounds that she had relied in her
memorial on the incorrect subsection of the LOTC provision. The Court considered that the
requirement to specify which subsection was being relied upon was lawful, as it was provided for by
the same Law. Furthermore, it pursued the legitimate aim of ensuring respect for the rule of law and
the proper administration of constitutional justice.
The Court therefore had to ascertain whether the restriction had been proportionate in the present
case. It noted that the Constitutional Court had been able to identify the two grounds of appeal
submitted by the applicant. The inadmissibility decision had thus been based solely on the drafting
error, as the ground of appeal had been clear from the applicant’s memorial and had been identified
by the judges.
Consequently, and in accordance with its case-law, the Court held that the approach taken by the
Constitutional Court had been excessively formalistic, having deprived the applicant of a remedy
afforded by domestic law in respect of the matter at issue.
In the alternative, the Court noted that the Constitutional Court could have requested the applicant
to rectify the error, as provided for by the LOTC, given that the ground of appeal had been clear
from her memorial.
There had therefore been a violation of Article 6 § 1 of the Convention.
Application no. 68143/16 (Amador de Faria e Silva and Others v. Portugal)
The Court noted at the outset that the reason cited for the Constitutional Court’s inadmissibility
decision had been the applicants’ omission to raise the alleged issue of unconstitutionality during
the proceedings before the Central Administrative Court.
While the Court acknowledged that this requirement reflected the fact that the Constitutional Court
was solely a court of last instance, it nevertheless observed that the applicants had raised an issue of
unconstitutionality in their submissions in reply to the Ministries, on account of the difference in
treatment between officials in the autonomous regions of Madeira and the Azores and those on the
The Central Administrative Court had not considered this issue, and had drawn a distinction between
different categories of officials rather than addressing the difference in treatment raised by the
applicants between inspectors in mainland Portugal and those in the autonomous regions of
Madeira and the Azores.
The Court also observed that the Constitutional Court had held that the applicants should have been
able to anticipate the decision of the Central Administrative Court, since the issue of
unconstitutionality raised by them had been the subject of a recent Supreme Court judgment.
However, the Court noted that this case had not concerned the applicants and that the judgment
had been given some months before the first judgment which had found in their favour, and which
had made no distinction between different categories of officials. Hence, the applicants might well
have been surprised by the decision of the Central Administrative Court.
Consequently, the Court held that the Constitutional Court had displayed excessive formalism and
that there had been a violation of Article 6 § 1 of the Convention.
Application no. 78841/16 (Antunes Cardoso)
The Court noted that the applicant had not raised a plea of unconstitutionality based on the
interpretation of a legal rule, and that his appeal had therefore fallen outside the jurisdiction of the
The Court accepted that, given the specific features of the Constitutional Court, more stringent
admissibility requirements might apply. Hence, for the interpretation of a rule to be open to
constitutional review, it had to be formulated in quite general and abstract terms.
In the present case the breach of the ne bis in idem principle alleged by the applicant related to the
application of that principle by the first and second-instance courts to the acts of which he was
Consequently, no rule-based criterion within the meaning of the Constitutional Court’s case-law had
been at issue. There had thus been no violation of Article 6 § 1.
Article 6 § 1 (lack of impartiality of the three-judge committee of the Constitutional Court)
The applicants in applications nos. 55997/14 and 68143/16 complained that this committee had
lacked impartiality owing to the presence of the judge who had given the impugned inadmissibility
decision, who had also been the judge rapporteur. The applicants therefore called into question the
objective impartiality of the three-judge committee that had ruled on the admissibility of their
The Court observed that this committee was the body that delivered the final decision on the
admissibility of constitutional appeals; the decision of the judge rapporteur was just a stage in that
procedure. Hence, the committee was not a fully fledged autonomous entity called upon to
determine the matter at issue.
Accordingly, the Court declared the complaints concerning the impartiality of the three-judge
Just satisfaction (Article 41)
The Court held that Portugal was to pay 3,300 euros (EUR) in respect of non-pecuniary damage to
each of the applicants in applications nos. 55997/14 and 68143/16.