Judgment (Merits and Just Satisfaction) of European Court of Human Rights, April 22, 1994 (case CASE OF SARAIVA DE CARVALHO v. PORTUGAL)

Resolution Date:April 22, 1994

No violation of Art. 6-1




(Application no. 15651/89)



22 April 1994

In the case of Saraiva de Carvalho v. Portugal[],

The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:

             Mr               R. Ryssdal, President,

             Mr               F. Gölcüklü,

             Mr               A. Spielmann,

             Mr               S.K. Martens,

             Mr               I. Foighel,

             Mr               F. Bigi,

             Mr               A.B. Baka,

             Mr               M.A. Lopes Rocha,

             Mr               J. Makarczyk,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,

Having deliberated in private on 25 November 1993 and 23 March 1994,

Delivers the following judgment, which was adopted on the last-mentioned date:


  1.    The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 7 April 1993, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 15651/89) against the Portuguese Republic lodged with the Commission under Article 25 (art. 25) by a Portuguese national, Mr Otelo Saraiva de Carvalho, on 10 October 1989.

    The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Portugal recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 para. 1 (art. 6-1).

  2.    In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).

  3.    The Chamber to be constituted included ex officio Mr M.A. Lopes Rocha, the elected judge of Portuguese nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr R. Macdonald, Mr A. Spielmann, Mr S.K. Martens, Mr I. Foighel, Mr F. Bigi and Mr A.B. Baka (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently Mr J. Makarczyk, substitute judge, replaced Mr Macdonald, who was unable to take part in the further consideration of the case (Rules 22 para. 1 and 24 para. 1).

  4.    As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Portuguese Government ("the Government"), the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the Government’s memorial on 26 August 1993 and the applicant’s memorial on 30 August. On 6 September the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.

  5.    On 3 November 1993 the Commission produced the documents relating to the proceedings before it, as requested by the Registrar on the President’s instructions.

  6.    In accordance with the decision of the President, who had given the applicant’s lawyer leave to use the Portuguese language (Rule 27 para. 3), the hearing took place in public in the Human Rights Building, Strasbourg, on 23 November 1993. The Court had held a preparatory meeting beforehand.

    There appeared before the Court:

    - for the Government

                               Mr A. Henriques Gaspar, Deputy Attorney-General

                                             of the Republic,                Agent,

                               Mr M. Pedrosa Machado, Professor of Law,

                                             University of Lisbon and Portuguese Catholic University,

                               Miss M.J. Pires, deputy to the Permanent Representative

                                             of Portugal to the Council of Europe,               Counsel;

    - for the Commission

                               Mr M.P. Pellonpää,               Delegate;

    - for the applicant

                               Mr R. Francês, of the Lisbon Bar,              Counsel.

    The Court heard addresses by Mr Henriques Gaspar, Mr Pedrosa Machado, Mr Pellonpää and Mr Francês. The applicant also addressed the Court.



  7.    Born in 1936, Mr Otelo Saraiva de Carvalho is a Portuguese citizen who lives in Oeiras. At the material time he was a lieutenant-colonel in the Portuguese army.

  8.    On 10 June 1984 he was arrested and held in pre-trial detention on a charge of founding and leading a terrorist organisation, which is an offence under Article 288 of the Criminal Code; he was suspected of being one of the founders and leaders of the "FP 25 de Abril" (Popular Forces 25 April), a group that had claimed responsibility for several bomb outrages, armed attacks and murders.

    1. The judicial investigation proceedings

  9.    On 30 December 1984 the judge of the Lisbon Criminal Investigation Court (tribunal de instrução criminal) to whom the case had been assigned closed the adversarial investigation and sent the file to the public prosecutor’s office.

  10.   On 7 January 1985 the prosecutor delivered his charges (acusação). He accused the applicant and several of his co- defendants of having drawn up a comprehensive plan under which, by means of the "FP 25 de Abril", they would seize power by force and overthrow the State’s institutions. He emphasised that Mr Saraiva de Carvalho was one of the instigators of the scheme.

  11.    In accordance with section 59 of Law no. 82/77 of 6 December 1977 on the administration of justice, section 8 of Legislative Decree no. 269/78 of 1 September 1978 and Article 365 of the Code of Criminal Procedure (see paragraph 26 below), the file was sent, together with the prosecution’s...

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