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You are here: BAILII >> Databases >> European Court of Human Rights >> MOREIRA DE AZEVEDO v. PORTUGAL (ARTICLE 50) - 11296/84 [1991] ECHR 41 (28 August 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/41.html Cite as: [1991] ECHR 41, 14 EHRR 113, (1992) 14 EHRR 113

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In the case of Moreira de Azevedo 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 J. Cremona,

Mr J. Pinheiro Farinha,

Mr A. Spielmann,

Mr J. De Meyer,

Mr S.K. Martens,

Mrs E. Palm,

and also of Mr M.-A. Eissen, Registrar,

Having deliberated in private on 27 August 1991,

Delivers the following judgment, which was adopted on that date:

_______________

Notes by the Registrar:

* The case is numbered 22/1989/182/240. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** The amendments to the Rules of Court which came into force on

1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 12 October 1989.

It originated in an application (no. 11296/84) against the

Republic of Portugal lodged with the Commission by

Mr Manuel Moreira de Azevedo, a Portuguese national, on

16 November 1984.

2. In a judgment of 23 October 1990 ("the principal

judgment", Series A no. 189) the Court found that there had been

a violation of Article 6 para. 1 (art. 6-1) of the Convention

because the "reasonable time" had been exceeded (pp. 18-19

and 20, paras. 71-75 of the reasons and point 2 of the operative

provisions). The only outstanding matter to be settled is the

question of the application of Article 50 (art. 50).

3. In his claims dated 11 May 1990 the applicant asked for

8,000,000 escudos in respect of pecuniary damage and

2,000,000 escudos for non-pecuniary damage. He also sought

reimbursement of costs and expenses referable to the European

proceedings, namely 500,000 escudos for lawyers' fees and

72,000 escudos for travel and subsistence expenses (ibid.,

pp. 19-20, paras. 77-78).

4. In the principal judgment the Court reserved the said

question, considering it not to be ready for decision; it invited

the Portuguese Government ("the Government") and the applicant

to submit to it in writing within three months their observations

on the matter, and in particular to communicate to it any

agreement reached between them (ibid., p. 20, para. 79 of the

reasons and point 3 of the operative provisions).

5. All attempts at reaching such an agreement having failed,

the Registrar received the observations and supplementary

observations of the Government and the applicant respectively on

various dates during the period from 21 January to 12 March 1991.

In a letter received on 15 April 1991, the Delegate of the

Commission referred to his statements, at the hearing of

23 May 1990, with reference to the applicant's claims.

On 29 April 1991 the Government produced various documents which

the Court had asked for.

6. The Court decided that in the circumstances there was no

need to hold a hearing.

AS TO THE FACTS

7. For the facts of the case the Court refers to the

principal judgment (pp. 8-11, paras. 11-50) and will merely bring

it up to date here.

8. On 21 March 1988 Mr Moreira de Azevedo brought an action

for damages in the Vila Nova de Famalicão Court of First Instance

against Mr Bernardo Gonçalves de Sousa, the defendant in the

criminal proceedings for assault whose duration, according to the

principal judgment, had exceeded the "reasonable time".

On 30 June 1988 the court held that the applicant's right to

compensation was statute-barred, and this decision (despacho

saneador) was upheld by the Oporto Court of Appeal (tribunal de

relação) on 6 July 1989.

9. Mr Moreira de Azevedo lodged an appeal (revista) and the

Supreme Court (Supremo Tribunal de Justiça) quashed the Court of

Appeal's decision on 24 January 1991, holding that the said right

was not statute-barred and ordering the case to be proceeded

with.

In a letter of 28 June 1991 the Government informed the Registrar

that this decision had not yet become final, as Mr Gonçalves de

Sousa had applied for a declaration of nullity (Article 732 of

the Code of Civil Procedure).

AS TO THE LAW

10. Under Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising

from the ... Convention, and if the internal law of the said

Party allows only partial reparation to be made for the

consequences of this decision or measure, the decision of the

Court shall, if necessary, afford just satisfaction to the

injured party."

I. Damage

11. The applicant in the first place claimed

10,000,000 escudos as compensation, to wit, 8,000,000 escudos for

pecuniary damage and 2,000,000 escudos for non-pecuniary damage.

The Government accepted that he was entitled to monetary

compensation for non-pecuniary damage, but for nothing more, and

assessed this at 600,000 escudos. They expressed their regret

that Mr Moreira de Azevedo was claiming a sum considerably higher

than that (4,100,000 escudos) which he had asked for in the Vila

Nova de Famalicão Court.

At the hearing on 23 May 1990 the Delegate of the Commission said

that he was in favour of awarding a sum in respect of

non-pecuniary damage, but did not give any figure.

12. The Court observes that, pending the final decision of

the Supreme Court (see paragraph 9 above), it is still uncertain

whether Mr Moreira de Azevedo's right against Mr Gonçalves de

Sousa is statute-barred or not, and if not, what the amount of

his damages would be. Be that as it may, the excessive length

of the criminal proceedings must have caused the applicant

pecuniary damage, and definitely caused him non-pecuniary damage.

Taking its decision on an equitable basis as required by

Article 50 (art. 50), the Court awards him 4,000,000 escudos on

this count.

II. Costs and expenses

13. The applicant sought reimbursement of costs and expenses

relating to the European proceedings, namely 500,000 escudos for

lawyers' fees and 446,800 escudos for travel and subsistence

expenses and faxes.

The Government considered that all these items had already been

covered by the legal aid granted by the Commission and Court.

14. The Court does not regard the amounts claimed as

excessive, but the amount of FRF 20,153.90 paid as legal aid

should be deducted therefrom.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that the respondent State is to pay the applicant

within the next three months 4,000,000 (four million) escudos in

respect of damage and 946,800 (nine hundred and forty-six

thousand eight hundred) escudos for costs and expenses, less

FRF 20,153.90 (twenty thousand one hundred and fifty-three French

francs and ninety centimes);

2. Dismisses the remainder of the claim for just

satisfaction.

Done in French and in English, and notified in writing under

Rule 55 para. 2, second sub-paragraph, of the Rules of Court on

28 August 1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar