CEDH · CASELAW;CLIN;ENG — 7 octobre 2008

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Portugal - 35228/03 Judgment 7.10.2008 [Section II] Article 6 Article 6-3-c Defence through legal assistance Failure by domestic courts to ensure practical and effective compliance with rights of the defence: violation   Article 3 Degrading treatment Inhuman treatment Surgery performed on drug-trafficker without his consent: no violation   Article 8 Article 8-1 Respect for private life Surgery performed on drug-trafficker without his consent: no violation   Facts : In November 2002, on arriving at Lisbon Airport from Rio de Janeiro (Brazil), the applicant was searched by customs officers, who found several packets of cocaine hidden in his shoes. The applicant informed them that he had swallowed a further packet. He was taken to hospital and underwent surgery for its removal. Charges were brought against him for drug-trafficking, and he was placed in pre-trial detention. During the initial phase of the proceedings, he was assisted by a trainee lawyer. Since he faced a heavy sentence, however, a new, supposedly more experienced, lawyer was assigned to his case in January 2003 under the duty scheme. However, the new lawyer took no action in the proceedings other than to ask to be released from the case three days before the trial. A replacement lawyer was then assigned on the day the trial began and had only five hours in which to study the case file. In September 2003 the Lisbon Criminal Court convicted the applicant, sentenced him to four years and ten months’ imprisonment and ordered his exclusion from Portugal. Law : Article 6 §§ 1 and 3 (c) – Owing to the manner in which the case was prepared and conducted by the duty lawyers, the aim of Article 6 § 3 was not fulfilled. As regards in particular the lawyer assigned on the day of the hearing, the period of a little over five hours she had to prepare the defence was quite clearly too short for such a serious offence that was liable to result in a heavy sentence. The Lisbon Criminal Court had not taken steps to ensure that the applicant was receiving proper assistance from a duty lawyer. Having assigned the replacement lawyer and knowing that the applicant had not received genuine legal assistance, it could have adjourned the hearing on its own initiative. In the circumstances of the case, the domestic court should have ensured concrete and effective respect for the applicant’s defence rights rather than remain passive. Conclusion : violation (unanimously). Article 3   – As regards the alleged violation of the applicant’s physical integrity on account of the surgery, there was insufficient evidence to establish that he had given his consent or that he had refused and had been forced to undergo the operation. The decision to perform the surgery had been taken by medical staff. The operation had been required by medical necessity as the applicant risked dying from intoxication and had not been carried out for the purpose of collecting evidence. Indeed, the applicant had been convicted on the basis of other pieces of evidence. It had been a straightforward operation and the applicant had received constant supervision and an adequate medical follow-up. As to the effects of the operation on his health, the evidence before the Court did not establish that the ailments from which he claimed to have been suffering since were related to the operation. Conclusion : no violation (unanimously). Article 8 – The interference with the applicant’s right to respect for his private life was in accordance with the law and, at the very least, sought to protect his health. A fair balance had been struck between the public interest in the protection of health and the applicant’s right to the protection of his physical and mental integrity. Conclusion : no violation (unanimously). Article 41– EUR 3,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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