CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 octobre 2024

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margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s58277305 { width:28.55pt; display:inline-block } .sDC0B6D6A { width:108.08pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }   FOURTH SECTION CASE OF JESUS PINHAL v. PORTUGAL (Applications nos. 48047/15 and 2276/20)     JUDGMENT   Art 4 P7 • Right not to be tried or punished twice • Three sets of proceedings initiated by criminal-law authorities, Securities Market Commission and Bank of Portugal for various criminal and administrative offences committed by applicant as Vice-Chairman of Board of Directors of Banco Comercial Português • Proceedings sufficiently connected in substance and in time to be regarded as forming coherent whole   Prepared by the Registry. Does not bind the Court.   STRASBOURG 8 October 2024 Referral to the Grand Chamber   17/03/2025   This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Jesus Pinhal v. Portugal, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Gabriele Kucsko-Stadlmayer, President ,   Faris Vehabović,   Branko Lubarda,   Anja Seibert-Fohr,   Anne Louise Bormann,   Sebastian Răduleţu , judges ,   João Manuel da Silva Miguel , ad hoc judge , and Andrea Tamietti, Section Registrar, Having regard to: the applications (nos.   48047/15 and 2276/20) against the Portuguese Republic lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Mr   Filipe de Jesus Pinhal (“the applicant”), on 24   September 2015 and 3   January 2020, respectively; the decision to give notice of the applications to the Portuguese Government (“the Government”); the withdrawal of Ms. Guerra Martins, judge elected in respect of Portugal (Rule   28 of the Rules of Court) and the decision of the President of the Chamber to appoint Mr   João Manuel da Silva Miguel to sit as ad   hoc judge (Rule   29 §   1 of the Rules of Court); the parties’ observations; Having deliberated in private on 3 September 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns three sets of proceedings brought against the applicant by the criminal-law authorities, the Securities Market Commission ( Comissão do Mercado de Valores Mobiliários – “the CMVM”) and the Bank of Portugal ( Banco de Portugal – “the BdP”), respectively, for various criminal and administrative offences committed while he was Vice-Chairman of the Board of Directors of the Banco Comercial Português bank (“the BCP”). Relying on Article 4 of Protocol No.   7 to the Convention, the applicant complained that he had been prosecuted ( poursuivi ) three times for the same acts. He also raised complaints under Articles   6 and 7 of the Convention. THE FACTS 2.     The applicant was born in 1946 and lives in Lisbon. He was represented by Ms   V.   Costa Ramos and Ms   L. Prata Cordeiro, lawyers practising in Lisbon. 3.     The Government were represented until 1   October 2022 by their Agent, Ms   F. Carvalho, Deputy Attorney General, and, from that date onwards, by their Agent, Mr   Ricardo Bragança de Matos, Public Prosecutor. BACKGROUND 4 .     At the relevant time, the applicant was the Vice-Chairman of the Board of Directors of the BCP. 5 .     From 1999 to 2007, as part of a strategy to increase the bank’s share capital, the BCP’s Board of Directors set up a system of “circular trading” through offshore companies registered in the Cayman Islands, the Isle of Man, the British Virgin Islands and Gibraltar, to which it granted substantial loans to enable them to buy and sell shares in the bank and in other entities belonging to the BCP group, thereby influencing their price on the financial market. 6 .     Despite this strategy, which was aimed at increasing the value of shares in the BCP, the bank incurred losses of nearly 590   million euros (EUR). 7 .     The BCP sought to conceal these losses by means of various financial transactions, which it did not record in its accounting reports. 8 .     In a letter of 28   November 2007, supplemented by an additional document dated 11   December 2007, J.B., a shareholder in the BCP, complained to the CMVM and to the Portuguese central bank, the BdP, of the manoeuvres mentioned in paragraphs   5-7 above (see paragraph   105 below). 9 .     On 14   December 2007 he sent a copy of the complaint and the additional document to the Attorney General. THE CRIMINAL PROCEEDINGS The pre-trial criminal investigations (case no.   7327/07.9TDLSB) The public prosecutor’s investigation and the indictment 10 .     On 21 December 2007, following J.B.’s complaint (see paragraph   8 above), the Public Prosecutor’s Office at the Lisbon District Court opened a criminal investigation against the applicant on charges of market manipulation under Article   379 §   1 of the Securities Code ( Código dos Valores Mobiliários – “CVM”; see paragraph   108 below), forgery and use of forged documents ( falsificação de documento ) under Article   256 §   1   (d) and (e) of the Criminal Code and aggravated fraud ( burla qualificada ) under Articles   217 §   1 and 218 §   2   (a) of the Criminal Code (see paragraph   104 below) . 11 .     On 10   January 2008 the public prosecutor at the Lisbon District Court held a meeting with two representatives of the CMVM. 12 .     On 16   January 2008 he requested information from the CMVM concerning the dates on which the BCP’s capital had increased in the period from January 2000 to December 2007 and changes in the bank’s share price over the same period. He also asked to be kept informed of the various preliminary and administrative proceedings that had been instituted against the BCP since January 2000 in connection with the acts complained of by J.B. 13 .     On 6   February 2008 the prosecutor met with representatives of the BdP. 14 .     On 3   July 2008 the CMVM sent the Public Prosecutor’s Office the information it had requested (see paragraph   12 above). 15 .     On 4   July 2008 the Deputy Attorney General acknowledged receipt of the information forwarded by the CMVM and indicated that the Public Prosecutor’s Office was prepared to take any action in conjunction with the CMVM in order to ensure the best possible protection of the integrity of the financial markets. 16 .     On 27   August 2008 the BdP sent the Public Prosecutor’s Office the evidence that had already been gathered in the context of the proceedings pending before it (see paragraphs   80-85 below). 17 .     On 22   December 2008 it forwarded the accusations ( acusação ) it had drawn up against the applicant (see paragraph   83 below). 18 .     On 13   April 2009 the applicant was interviewed by two deputy prosecutors of the Public Prosecutor’s Office, in the presence of his lawyer. 19 .     On 23   June 2009 the Public Prosecutor’s Office filed its indictment against the applicant and his co-defendants, based, inter alia , on the following evidence: (a)   the defendants’ statements, (b)   the expert reports submitted during the investigation, (c)   the documents added to the file by the applicant and his co-defendants, (d)   the submissions drawn up by the BdP (see paragraph   17 above) in the context of the administrative proceedings it had initiated, (e)   copies of the case files in the administrative proceedings initiated by the CMVM and the BdP respectively (see paragraphs   40 and 80 below), (f)     the statements given by forty-six witnesses, including officials who had intervened in the proceedings pending before the CMVM and the BdP. 20 .     In its indictment, the Public Prosecutor’s Office indicted the applicant on charges of market manipulation, forgery and use of forged documents and aggravated fraud. In particular, it accused him, first, of having participated, from the late 1990s to the early 2000s, in his capacity as Vice-Chairman of the Board of Directors of the BCP, in the setting-up and financing of offshore companies placed under the bank’s control for the purpose of acquiring and selling their shares in order to increase their value artificially on the financial market and, second, of having concealed from the supervisory authorities and the financial market, until the end of 2007, the true value of the shares and the bank’s actual losses resulting, in both cases, from the activities of those same offshore companies. 21 .     The Public Prosecutor’s Office also ordered that notice of its indictment be given to the Governing Board ( Conselho Directivo ) of the CMVM and to the Governor of the BdP. The judicial investigation and the committal for trial 22 .     On an unspecified date the applicant appealed to the Lisbon Criminal Investigation Court against the decision of the Public Prosecutor’s Office, requesting the opening of an adversarial judicial investigation ( instrução ). 23 .     His request was granted and, in the context of the ensuing investigation, the Criminal Investigation Court heard all the defendants, along with thirty-four witnesses. It also commissioned an expert report and re-examined the evidence in the case file. 24 .     In a decision of 27   July 2010 it committed the applicant to stand trial ( pronúncia ) for market manipulation and forgery and use of forged documents, finding that there was no case to answer ( não pronúncia ) on the charge of aggravated fraud. The trial and the Lisbon District Court’s judgment of 2   May 2014 25 .     The case was assigned to the Eighth Criminal Division ( 8 a Vara Criminal ) of the Lisbon District Court. 26 .     The applicant filed his defence on 29   March 2011. 27 .     The Lisbon District Court scheduled hearings for 24 and 26   October;   9, 14, 23 and 30 November; and 14   December 2011. 28 .     On 21   June 2011 the applicant and his co-defendants asked the court to postpone the hearings until after March 2012 on the grounds that they were in the process of being interviewed by the BdP and the CMVM and were therefore unable to attend additional hearings. The court granted their request and scheduled the opening of the trial for 26   September 2012 . 29 .     The trial spanned more than one hundred and thirty hearings during which the four defendants were heard, together with experts and witnesses, including CMVM and BdP officials. It ended in November 2013. 30 .     On 2   May 2014 the Lisbon District Court, sitting as a bench of three judges, acquitted the applicant of the charge of forgery and use of forged documents and convicted him of market manipulation under Article   379 §   1 of the CVM (see paragraph   108 below), sentencing him to two years’ imprisonment, which could be suspended upon payment of EUR   300,000 to a charitable organisation. In accordance with Article   380 §   1   (a) of the CVM (ibid.), that penalty was accompanied by a four-year ban on exercising administrative, executive or supervisory functions in any credit institutions or financial firms. In its judgment, the court found the applicant guilty of market manipulation for having, inter alia , submitted, between 1998 and 2008, false information on the offshore companies (see paragraph   5 above) and their financing and on the BCP’s financial situation and the true value of its shares, both to the financial market and in the quarterly accounting reports submitted for the CMVM’s Information Disclosure System ( Sistema de Difusão de Informação – “SDI”). It took the view that the purchase and sale of shares in the BCP through the offshore companies had distorted supply and demand, since the companies in question had been acting under the control and on behalf of the BCP. The applicant’s appeal and the Lisbon Court of Appeal’s judgment of 25   February 2015 31 .     The Public Prosecutor’s Office appealed against the judgment. 32 .     On 9   June 2014 the applicant also appealed against the judgment to the Lisbon Court of Appeal. He challenged the accusations against him and relied, furthermore, on Article   29 §   5 of the Constitution (see paragraph   99 below) and Article   4 of Protocol No.   7 to the Convention, alleging a breach of the ne bis in idem principle in the light of the administrative proceedings initiated by the CMVM and the BdP in respect of acts which, in his view, were identical to those at issue in the criminal proceedings, namely the use, in his capacity as a director of the BCP, of a series of offshore companies, financed by the BCP, to operate on the financial market and the concealment, in particular from the supervisory authorities, of the loss of value of those companies through the falsification of accounting reports. In particular, the applicant argued that Article   420 §   1 of the CVM (see paragraph   108 below) was in breach of the ne bis in idem principle in that it allowed the same acts to be punished by both an administrative sanction and a criminal sanction and submitted that, in his case, three sets of criminal proceedings had been brought against him in connection with the same acts and that the legislation under which this was permitted, namely Article   420 §   1 of the CVM (see paragraph   108 below) and Article 208 of the General Regulation on Credit Institutions and Financial Companies ( Regime Geral das Instituições de Crédito e Sociedades Financeiras – “the   RGICSF”; see paragraph   106 below), were incompatible with Article   29 §   5 of the Constitution (see paragraph   99 below) and with Article   4 of Protocol No.   7 to the Convention. He pointed out that, taking into account all the sanctions imposed in the three sets of proceedings, he had been sentenced to two years’ imprisonment, suspended; ordered to pay a total of EUR   1,450,000, corresponding to the EUR   300,000 paid as a condition for the suspension of his prison sentence (see paragraph   30 above), plus the penalties of EUR   700,000 and EUR   425,000 imposed respectively by the CMVM (see paragraph   53 below) and the BdP (see paragraphs   84 and 89 below); and barred for a total of sixteen years from taking up any duties in the financial sector, namely the sum of the bans of four years, seven years and two times two years and six months (see paragraph   53 below) that had been imposed on him in the criminal proceedings, the proceedings before the BdP and those before the CMVM, respectively. He concluded that his sentence had been disproportionate to the impugned acts. 33 .     On 28   January 2015 the Lisbon Court of Appeal held a hearing at which the defendants’ lawyers made their oral submissions. 34 .     In a judgment of 25   February 2015 the Lisbon Court of Appeal upheld the judgment of the Lisbon District Court. Having noted that, in parallel with the criminal proceedings, two sets of administrative proceedings had been instituted against the applicant by the CMVM and the BdP, respectively, it rejected the argument that the ne bis in idem principle had been breached, finding that the offending acts and the relevant offences differed from one set of proceedings to another. It further observed as follows: (a)   In the light of the provisions of Article   20 of the General Regulation on Administrative Offences ( Regime geral das contra-ordenações – “RGCO”) and of Article   208 of the RGICSF (see paragraphs   106 and 113 below), the administrative offence of false accounting and the criminal offence of forgery and use of forged documents were concurrent offences and were to be prosecuted in separate proceedings; (b)   Article   420 §   1 of the CVM (see paragraph   108 below) provided that where the same act constituted both a criminal offence and an administrative offence, separate proceedings were to be instituted by the competent authorities, except in the case of insider dealing ( violação do regime da informação privilegiada ), for which criminal proceedings alone were to be instituted. The constitutional appeal and the Constitutional Court’s judgment of 12   November 2015 35 .     On 13   March 2015 the applicant lodged a constitutional appeal with the Constitutional Court, in which he raised, in particular, the issue of a breach of the ne bis in idem principle. 36 .     In a summary decision of 12   November 2015 the Constitutional Court, sitting as a single judge, dismissed his appeal, rejecting the argument that there had been a breach of the ne bis in idem principle, as enshrined in Article   29 §   5 of the Constitution (see paragraph   99 below), and referring, in this connection, to its judgment no.   356/2006 (see paragraph   115 below), in which it had ruled on a similar issue in another case. The summary decision was upheld on 4   May 2016 by a panel of three judges of the Constitutional Court. 37 .     On 14   July 2016 the applicant’s criminal conviction acquired the force of res judicata ( caso julgado ). Subsequent developments 38 .     On 25   January 2017 the Lisbon District Court noted that the applicant had paid the sum of EUR   300,000 to a charitable association and that he had thereby met the condition for the suspension of the prison sentence that had been imposed on him in the criminal proceedings (see paragraphs   30 and 32 above). On 6   November 2018 the court declared that the term of the prison sentence had expired. 39 .     On 17   October 2020 the Lisbon District Court declared that the additional penalty that had been imposed on the applicant – namely, the four-year ban on exercising administrative, executive or supervisory functions in any credit institutions or financial firms (see paragraph   30 below) – had expired by reason of its having been served. THE ADMINISTRATIVE PROCEEDINGS INITIATED BY THE CMVM The main proceedings (application no.   48047/15) Proceedings before the CMVM (proceedings no.   42/2008) and its decision of 9   July 2010 40 .       Following J.B.’s complaint (see paragraph   8 above) the CMVM opened an administrative investigation into the alleged acts. 41 .     On 21   July 2008 the CMVM asked the BdP to provide copies of the statements that had been given in the proceedings before it and information on several companies linked to the BCP, including offshore companies. 42 .     On 16   September 2008 the BdP forwarded the information to the CMVM, in accordance with Article   81 §   1 of the RGICSF (see paragraph   106 below). 43 .     On 29   December 2008 the CMVM filed its accusations against the applicant and eight co-defendants. It accused them of having, from the late 1990s onwards, used offshore companies, set up and financed by the BCP, for the purpose of purchasing and selling shares in the bank. It further accused them of having concealed the losses sustained by the bank and its true financial situation, and of having artificially inflated the value of its shares, which had increased their price and dividends. 44 .     In view of the reports on the consolidated accounts ( documentos de prestação de contas consolidadas ) for 2003, 2004, 2005, 2006 and 2007 published in its SDI (see paragraph   30 above), the CMVM accused the applicant of six counts of the very serious administrative offence ( contra-ordenações ) of failure to comply with the obligation to provide high-quality information pursuant to Articles   7, 388 §   1   (a) and 389 §   1   (a) of the CVM (see paragraphs   108-110 below) for having contributed to the reporting of false and incomplete information regarding the existence of the offshore companies, the liquidity of the shares sold by the BCP on the financial market and the financial losses incurred. 45 .     On 6   March 2009 the applicant filed his defence. 46 .     The CMVM heard four defendants and fifty-one witnesses. 47 .     In a decision of the CMVM’s Governing Board of 9   July 2010 the applicant was found guilty of breaches of his duty to provide high-quality information, as provided for in Article   7 of the CVM (see paragraphs   108 ‑ 109 below), which constituted six counts of a very serious administrative offence consisting in reporting false information in the consolidated account reports for 2003-2007 submitted for the CMVM’s SDI. More specifically, he was found to have approved, between January 2004 and 10 October 2007, and authorised, on 23   December 2017, the disclosure of five reports on the accounts and one statement to the financial market, respectively, containing information that was: (a) false, since the profits were overstated, the losses were not reflected and the BCP’s financial performance was reported as having been better than its actual results; (b) incomplete, since the offshore companies in question were not listed as entities belonging to the BCP financial group; (c) unlawful, in view of breach of the rules under which the BCP was required to disclose its true financial situation. 48 .     In accordance with Articles   388 §   1   (a), 389 §   1   (a), 404 §   1   (b) and (c) and 405 of the CVM, and with Article   19 of the RGCO (see paragraphs   108, 110 and 113 below), the applicant was ordered to pay an overall administrative fine of EUR   800,000 and incurred the following two ancillary sanctions: (a) a ban on engaging in the profession or activities in connection with which the administrative offence had been committed, for a period of five years; (b) disqualification from exercising any administrative, managerial, executive or supervisory functions or, more generally, from representing a financial intermediary in the context of its activities as such, for a period of five years. The proceedings before the Lisbon Local Criminal Court and the judgment of 18   January 2013 (case no. 1923/10.4TFLSB) 49 .     The applicant and eight other defendants challenged the CMVM’s decision before the Lisbon Local Criminal Court ( tribunal de pequena instância criminal – “TPIC”; case no.   1923/10.4TFLSB). In his statement of appeal, the applicant raised a number of points, including an alleged breach of the ne bis in idem principle on account of the fact that a criminal prosecution had been brought against him on the same facts as those at issue in the CMVM proceedings. 50 .     From 20   September 2011 to 7   January 2013 the TPIC held seventy hearings, during which it heard the nine defendants and more than sixty witnesses, for both the prosecution and the defence. 51 .     In a judgment of 18   January 2013 the TPIC, sitting as a single judge, upheld the sanctions that had been imposed on the applicant (see paragraph   48 above). It relied on the documents in the case file and the statements given by the defendants and witnesses. The applicant’s appeal and the Lisbon Court of Appeal’s judgment of 6   March 2014 52 .     The applicant lodged an appeal against the TPIC’s judgment with the Lisbon Court of Appeal. He argued, in particular, that the prosecution on some counts of the administrative offences of which he was accused were time-barred and submitted, furthermore, that the TPIC had not addressed the point concerning a breach of the ne bis in idem principle. 53 .     In a judgment of 6   March 2014 the Lisbon Court of Appeal allowed the applicant’s appeal in part. It held that the prosecution was time-barred in respect of two counts of the administrative offence committed in 2004 and 2005, respectively, and ordered the applicant to pay an overall fine of EUR   700,000 on the four remaining counts of very serious administrative offences, pursuant to Articles   388 §   1   (a) and 389 §   1   (a) of the CVM and Article   19 of the RGCO (see paragraphs   108, 110 and 113 below). In addition, in accordance with Articles   404 and 405 of the CVM, it reduced the terms of the two ancillary sanctions (see paragraph   48 above) to two years and six months . 54 .     The applicant lodged an objection against the judgment on grounds of nullity. His objection was dismissed in a judgment of the Lisbon Court of Appeal of 26   June 2014. The constitutional appeal and the judgment of 27   March 2015 55 .     On 24   March 2014 the applicant had also lodged an appeal with the Constitutional Court, arguing, in particular, that the interpretation given to Articles   388 §   1   (a), 389 §   1   (b) and 420 of the CVM (see paragraphs 108 and 110 below) entailed a breach of the ne bis in idem principle enshrined in Article   29 §   5 of the Constitution (see paragraph   99 below). 56 .     In a summary decision of 8   January 2014, upheld by a bench of three judges on 27   March 2015, the Constitutional Court declared the constitutional appeal inadmissible on the ground that the matter in dispute did not concern the unconstitutionality of any rule. The proceedings concerning the time-barring of an administrative offence and the reassessment of the overall administrative sanctions (application no.   2276/20) The proceedings before the TPIC and the judgment of 8   June 2018 57 .     On an unspecified date prior to 27   March 2015 the applicant had argued before the TPIC that the prosecution on two counts of the administrative offence for which he had been held liable had become time-barred (see paragraph   53 above) under Article   418 of the CVM (see paragraph   108 below). Accordingly, he had sought a reassessment of the overall administrative sanctions ( cúmulo jurídico das sanções ) that had been imposed on him, under Article   19 of the RGCO (see paragraph   113 below). 58 .     In a judgment of 23   October 2015, after noting that the applicant’s conviction had acquired the force of res judicata on the date of the Constitutional Court’s judgment (see paragraphs   53 and 56 above), namely on 27   March 2015, the TPIC observed that the applicant’s claim had been lodged before that date and found, accordingly, that it had been lodged within the statutory time-limit. It went on to allow the appeal in part, declaring that the prosecution on one of the four counts of the administrative offence for which the applicant had been held liable (see paragraph   53 above) had become time-barred. It further decided that the reassessment of the overall administrative sanctions should be adjourned until the judgment had acquired the force of res judicata . 59 .     On 4   April 2018, after the dismissal of the applicant’s appeals against the judgment of 23   October 2015 lodged with the Court of Appeal and the Constitutional Court respectively, the TPIC held a hearing to reassess the overall administrative sanctions. 60 .     Also on 4   April 2018, the applicant once again argued, before the TPIC, that there had been a breach of the ne bis in idem principle in the light of Article   29 §   5 of the Constitution (see paragraph   99 below), Article   4 of Protocol No.   7 to the Convention and Article   50 of the Charter of Fundamental Rights and Freedoms of the European Union (EU) (“the Charter” – see paragraph   117 below). In this connection, he pointed out that he had been acquitted in a decision of 9   June 2015 – which had acquired the force of res judicata on 26   June 2015 – in the administrative proceedings initiated by the BdP (see paragraph   97 below), for acts which he submitted were identical to those of which he had been accused by the CMVM. He added that he had also been convicted on the same facts by the Lisbon Court of Appeal in a decision delivered on 25   February 2015, which had acquired the force of res judicata on 14   July 2016 (see paragraph   34 above). The applicant asked the court to refer a preliminary question to the Court of Justice of the European Union (CJEU) on the interpretation of Article   50 of the Charter (see paragraph   117 below), relying on the Court’s case-law in such matters and on the judgment of the CJEU of 20   March 2018 in Garlsson Real Estate and Others (C-537/16, EU:C:2018:193 – see paragraph   128 below). 61 .     In a judgment of 8   June 2018 the TPIC noted, firstly, that the decision on the merits delivered by the Lisbon Court of Appeal on 6   March 2014 had, on 27   March 2015, acquired the force of res judicata (see paragraphs   53 and 56 above), as had his conviction in the criminal proceedings and his acquittal in the administrative proceedings initiated by the BdP, the former on 14   July 2016 (see paragraphs   34 and 36-37 above) and the latter on 26   June 2015 (see paragraph 98 below). It further found that the ne bis in idem principle was not applicable to proceedings concerned with calculating the overall administrative fine . In this connection, the TPIC found as follows: “... Thus, it can be seen that the decisions on the merits which assessed the acts attributed to [the applicant] and [imposed] administrative fines [and] ancillary sanctions – constituting the main sanctions and the ancillary sanctions ... in the present case –, both in criminal case no.   7327/07.9TDLSB and in administrative case no.   1453/10.4TFLSB initiated by the BdP, have acquired the force of res judicata ... It should be added that [the reassessment] of the overall administrative fine and the ancillary sanctions following the final decision of 23   October 2015 declaring the prosecution time-barred does not defer the force of res judicata acquired on 27   March 2015 in the present case, whereby the facts, the application of the law to those facts for the purposes of acquittal or conviction, the administrative fines and the ancillary sanctions [imposed on the applicant] in respect of each of the offences were all dealt with. ... [T]he [authorities having delivered these decisions] have thus exhausted their judicial authority and the only issue to be decided now is the setting [of the overall administrative sanctions]. Contrary to [the applicant’s allegation], the question before this court is no longer one of pending proceedings, whether criminal or administrative, or of the assessment or application of the law to the facts, or even one of evidence ... In other words, it is no longer a question of delivering a decision on the merits to establish the facts, convict or acquit. Rather, the task at hand, as has already been said, is to review the calculation of the overall administrative fine and the ancillary penalties. ...” 62 .     The TPIC went on to point out that any judicial decision that had become final could only be varied by way of an application for review, in accordance with Articles   79   §   2, 80 and 81 of the RGCO (see paragraph   113 below). 63 .     It noted that, even if one took the view, in accordance with Article   2   §   4 of the Criminal Code and Article   3   §   2 of the RGCO (see paragraphs   104 and 113 below), and with Article   388 §   5 of the CVM (see paragraph   108 below), that Article   420 §   2 of the CVM, as amended by Law no.   28/2017 of 30 May 2017 (see paragraph   111 below), formed part of the substantive law and was more favourable to the applicant, it was not applicable in the present case, since the three decisions against him had already acquired the force of res judicata . 64 .     It also dismissed the request for a preliminary reference to the CJEU on the alleged breach of the ne bis in idem principle guaranteed by Article   50 of the Charter, taking the view that, unlike the CMVM’s decision finding against the applicant in the instant case, Garlsson Real Estate and Others (see paragraph   128 below) had concerned a decision that had yet to acquire the force of res judicata . It noted, moreover, that in that case, the combined sanctions in question had involved a prison sentence and a fine, whereas the case before it concerned, on the one hand, a criminal offence punished – by way of principal sanction – solely by a prison sentence and, on the other, administrative offences for which administrative fines were imposed. Lastly, in the court’s view, there had been no combination of fines in the case before it. It therefore rejected the request to deduct the EUR   300,000 paid by the applicant for the purpose of suspending the prison sentence handed down in the criminal proceedings   (see paragraphs   30, 34 and 38 above) from the administrative fine imposed on him in the proceedings before the CMVM (see paragraph   53 above). 65 .     Pursuant to Article   19 of the RGCO (see paragraph   113 below) and Articles   404, 405 §§   1, 2   (a), (b), (c) and (d), and 4 of the CVM, the TPIC went on to calculate the overall administrative fine, both as applicable at the relevant time and as amended by Law no.   28/2017 (see paragraphs   108 and 111-112 below), in accordance with Article 3 §   2 of the RGCO (see paragraph   113 below). It established the overall administrative fine at EUR   480,000 for three counts of the very serious administrative offence of reporting false information to the financial market. 66 .     The TPIC also reduced the ancillary penalties (see paragraphs   48 and 53 above) to a period of one year and three months, and noted that the sentences in question had been served for the purposes of enforcing the judgments handed down in the criminal proceedings and in the BdP proceedings. It therefore held that the terms of the two ancillary penalties that had been imposed in the present case had expired ( extintas ) pursuant to Article   420 §   3 of the CVM, as amended by Law no.   28/2017 of 30   May 2017, which was more favourable to the applicant in that regard (see paragraph   111 below). The applicant’s appeal and the Lisbon Court of Appeal’s judgment of 11   July 2019 67 .     On 23   July 2018 the applicant, through his two lawyers, appealed against the judgment to the Lisbon Court of Appeal. In his statement of appeal, which ran to 108   pages, he again complained of a breach of the ne bis in idem principle. He contested the decision not to apply Article   420 §   2 of the CVM, as amended by Law no.   28/2017 of 30 May 2017 (see paragraph   111 below), which he claimed was more favourable to him. He further submitted that the administrative fine imposed on him ought to have been reduced, pursuant to Article   420 §   3 of the CVM (see paragraph   111 below), by deducting the EUR   300,000 he had paid in the criminal proceedings (see paragraphs   38 and 64 above). He sought a preliminary reference to the CJEU in this regard and, lastly, under Article   411 §   5 of the Code of Criminal Procedure (see paragraph   102 below), which was applicable to the proceedings before the CMVM, he requested that a public hearing be held before the Lisbon Court of Appeal to discuss all the issues raised by the case and, more specifically, those pertaining to EU   law. 68 .     In a judgment of 11   July 2019 the Lisbon Court of Appeal dismissed the applicant’s claims and upheld the judgment of the TPIC (see paragraphs   61-66 above). It dismissed the applicant’s request for a public hearing before it, as he had failed to specify the points he wished to have discussed at such a hearing, as required by Article   411 §   5 of the Code of Criminal Procedure (see paragraph   102 below). It further held that it could not rule on the question whether there had been a breach of the ne bis in idem principle since the decisions against the applicant were all final and the proceedings before it concerned solely the calculation of the overall administrative fine following the time-barring of the prosecution on one count of the administrative offence for which the applicant had been held liable. It added that these considerations also made it pointless to refer a preliminary question to the CJEU. 69 .     The Lisbon Court of Appeal also found that the main administrative sanction imposed was different in nature from the sanction imposed in the criminal proceedings, the first being an administrative fine, whereas the second was a sum paid to a charitable institution for the purpose of suspending a prison sentence. It therefore concluded that there was no need to apply Article   420 §   3 of the CVM (see paragraph   111 below), as the more favourable law, in respect of the administrative sanction in question . 70 .     The applicant argued that the judgment was null and void on account of the fact that his request for a hearing to be held before the Lisbon Court of Appeal had been rejected. His claim was dismissed in a judgment of 27   November 2019. The constitutional appeal and the judgment of the three-judge bench of the Constitutional Court of 5   November 2020 71 .     On 12   December 2019 the applicant lodged a constitutional appeal with the Constitutional Court in which he argued that the interpretations given to the following statutes had been unconstitutional: (a) Article 420 §   2 of the CVM, both as amended by Law no.   28/2017 of 30   May 2017 and as previously in force (see paragraphs   108 and 111 below); (b) Article   420 §   3 du CVM, as amended by Law no.   28/2017 of 30   May 2017 (see paragraph   111 below); (c) Article   7 of the Code of Criminal Procedure regarding the autonomous nature of criminal procedure (see paragraph   101 below); (d) Article   411 §   5 of the Code of Criminal Procedure (see paragraph   102 below) with regard to the requirement that the appellant specify the questions he or she wished to have discussed at a hearing before the Court of Appeal. 72 .     In a summary decision of 24   April 2020 the Constitutional Court held that there was not need to rule on the constitutionality of the interpretations that had been given to Article   420 §   2 of the CVM, in either of the two versions specified, or of Article   7 of the Code of Criminal Procedure, since the Lisbon District Court had concluded that it could not examine the question concerning the ne bis in idem rule because the judgment of 6   March 2014 finding against the applicant (see paragraph   53 above) had acquired the force of res judicata . It held that the same applied to Article   420 §   3 of the CVM, holding, in this connection, that the determination of the nature of the sanctions in issue did not fall within the scope of its review, as it involved the application of the legislation t