MONTEIRO AIRES v. PORTUGAL - 70935/11 - Committee Judgment [2014] ECHR 109 (04 February 2014)

In the case of Monteiro Aires v. Portugal,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Dragoljub Popović, President,
          Paulo Pinto de Albuquerque,
          Helen Keller, judges,
and Fatoş Aracı, Acting Deputy Section Registrar,

Having deliberated in private on 14 January 2014,

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

PROCEDURE

1. The case originated in an application (no. 70935/11) 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 José Augusto Monteiro Aires (“the applicant”), on 7 November 2011.

2. The applicant was represented by Mr J. J. F. Alves, a lawyer practising in Matosinhos (Portugal). The Portuguese Government (“the Government”) were represented by their Agent, Ms. M. F. Graça de Carvalho, Deputy-Attorney General.

3. On 17 October 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1946 and lives in Matosinhos (Portugal).

5. On 11 January 2006 the applicant started eviction proceedings against three tenants before the Court of Matosinhos (domestic proceedings no. 355/06.3TBMTS).

6. On 23 February 2006 the court ordered their eviction and ordered the tenants to pay 2,170 euros (EUR) for rent arrears.

7. On 14 September 2006 the applicant started enforcement proceedings.

8. The following month the court ordered the seizure (penhora) of one third of one of the tenant’s income (executado). The payment of the debt began in December.

9. Meanwhile, the tenant had asked the court to reduce the deducted amount to one sixth of his salary. The court ordered that reduction on 10 January 2007.

10. The payments stopped on 7 October 2008, when the tenant became unemployed.

11. Between October 2008 and September 2009 the enforcement solicitor (solicitador de execução) tried to find attachable assets.

12. In September 2009 the parties made an agreement according to which the debtor’s wife would continue to pay the arrears in instalments, which she did for one year.

13. According to the last information received by the Court on 17 April 2013, the proceedings were pending.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

14. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement. He also complained that he had not had an effective remedy in this respect. He relied on Articles 6 § 1, 13, 14, 17, 34, 41, 46 of the Convention and Article 1 of Protocol No. 1. Being master of the characterisation to be given in law to the facts of the case (see Phillips v. the United Kingdom, no. 41087/98, § 38, ECHR 2001-VII; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009), the Court considers that in the light of its case-law the applicant’s complaints concerning the length of the proceedings should be examined from the standpoint of Articles 6 § 1 and 13 of the Convention only, which read as follows in the relevant parts:

Article 6 § 1

“ In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”

Article 13

“ Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority...”

15. The Government contested the arguments.

16. The Court notes that the eviction proceedings began on 11 January 2006 and ended on 23 February 2006, when the court of Matosinhos ordered the eviction and the payment of the rent arrears (see above § 6). The Court also notes that the applicant instituted enforcement proceedings on 14 September 2006.

17. The Court recalls that Article 6 § 1 protects the implementation of final, binding judicial decisions (see Ouzounis and Others v. Greece, no. 49144/99, § 21, 18 April 2002). The right to execution of such decisions, given by any court, is an integral part of the “right to a court” (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997-II; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 196, ECHR 2006-V). Otherwise, the provisions of Article 6 § 1 would be deprived of all useful effect (see Burdov v. Russia (dec.), no. 59498/00, §§ 34 and 37, ECHR 2001-VI).

18. Therefore, the overall length of the proceedings, including the eviction and enforcement proceedings, has lasted more than eight years.

A. Admissibility

19. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The alleged violation of Article 6 § 1

a. The period to be taken into consideration

20. The applicant alleged that the overall length of the proceedings was unreasonable within the meaning of Article 6 § 1 of the Convention. According to the Government, the periods during which the applicant did actually receive payments in execution of the judgment should not be taken into consideration.

21. The Court recalls that, irrespective of whether the enforcement is to be carried out against a private or State actor, it is up to the State to take all the necessary steps, within its competence, to execute a final court judgment and, in so doing, to ensure the effective participation of its entire apparatus, failing which it will fall short of the requirements contained in Article 6 § 1 (see, mutatis mutandis, Felbab v. Serbia, no. 14011/07, § 62, 14 April 2009).

22. However, the Court also recalls that domestic authorities cannot be held responsible for the period between the end of the civil proceedings and the beginning of the enforcement proceedings, which was beyond their control (see Gomes Almeida Henriques Moura v. Portugal (dec.), no. 43146/11, 12 March 2013).

23. Furthermore, a failure to enforce a judgment because of the debtor’s indigence cannot be held against the State unless and to the extent that it is imputable to the domestic authorities, for example, to their errors or delay in proceedings with the enforcement (see, mutatis mutandis, Omasta v. Slovakia (dec.), no. 40221/98, 10 December 2002).

24. In this connection, the Court acknowledges that even though the proceedings were still pending on 17 April 2013 (see above § 13), the enforcement of the court’s decision in question had started in December 2006, with the applicant receiving a monthly payment until 7 October 2008, when payment was suspended due to the debtor’s unemployment. Therefore, this period of time is not relevant for the assessment of the State’s responsibility for the length of the proceedings. The same principle applies to the period of time when the applicant’s wife was paying the debt from September 2009 until September 2010.

25. Since September 2010 (see above § 13) proceedings are pending and under the control of the solicitor of execution (see above § 12), as they were between October 2008 and September 2009, when no payment was being made to the applicant (see above § 11). Due to the solicitor of execution’s role in the proceedings in these situations, these periods of time must be taken into consideration when assessing the State’s responsibility for the length of the proceedings.

26. Hence, with the exception of the periods during which the payments were being made (see Ferreira Alves v. Portugal (Nº 9) [Committee], no. 54312/10, § 28, 2 April 2013), the Court considers that the domestic authorities are responsible for more than four years of proceedings for one level of jurisdiction.

b. Whether the length of the proceedings were reasonable

27. The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

28. The Court also stresses that an unreasonably long delay in enforcement of a binding judgment may breach the Convention. The reasonableness of such delay is to be determined having regard in particular to the complexity of the enforcement proceedings, the applicant’s own behaviour and that of the competent authorities, and the amount and nature of the court award (Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).

29. The Court considers that an average length of four years for one level of jurisdiction is excessive and accordingly finds that there has been a breach of Article 6 § 1.

2. Alleged violation of Article 13 of the Convention

30. As regards Article 13, the Court recalls that it guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudla v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).

31. The Court has examined similar issues in previous applications and has found a violation of Article 13 of the Convention in respect of the lack of an effective remedy under Portuguese Law whereby the applicant could have contested the length of the proceedings at issue and obtains compensation.

32. Thus, as the Court previously noted, the non-contractual civil liability proceedings against the State cannot be regarded as “effective” within the meaning of Article 13 of the Convention (Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, 10 June 2008; Garcia Franco and Others v. Portugal, no. 9273/07, § 50, 22 June 2010).

33. Therefore, there has been a violation of Article 13.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

34. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

35. The applicant claimed 16,000 euros (EUR) in respect of non-pecuniary damage.

36. The Government contested the claim.

37. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him EUR 2,600 under that head.

B. Costs and expenses

38. The applicant also claimed EUR 3,450 for the costs and expenses incurred before the domestic courts and before the Court.

39. The Government contested the claim.

40. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the applicant the sum of EUR 1,000 covering proceedings before the Court.

C. Default interest

41. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts:

(i) EUR 2,600 (two thousand and six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Dragoljub Popović
Acting Deputy Registrar President

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