ALVES v. PORTUGAL - 34939/12 - Committee Judgment [2014] ECHR 92 (28 January 2014)

In the case of Alves 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 Marialena Tsirli, Acting Deputy Section Registrar,

Having deliberated in private on 7 January 2014,

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

PROCEDURE

1. The case originated in an application (no. 34939/12) 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, Ms Maria do Sameiro Alves (“the applicant”), on 4 June 2012.

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

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1955 and lives in Porto.

5. On 31 May 2005 the applicant started criminal proceedings against several people before the Court of Fafe (domestic proceedings no. 310/05.0TAFAF), accusing them of illegally changing property boundaries.

6. On 2 October 2006 the Public Prosecutor (Ministério Público) filed the case. The applicant requested a judicial investigation to be opened (abertura de instrução).

7. On 23 October 2006 the applicant sought to intervene in the proceedings as an assistant to the public prosecutor (assistente).

8. On 20 June 2008 the applicant claimed damages under civil law against one of the defendants.

9. On 3 November 2008 the parties reached an agreement on the civil claim. On the same date the criminal proceedings ended with the withdrawal of the complaint by the applicant.

10. On 22 May 2009 the applicant started enforcement proceedings for the execution of the agreement.

11. On 20 July 2009 the defendant contested the enforcement. The claim was accepted by the court on 4 December 2009.

12. On 7 April 2011, after two appeals before the Guimarães court of Appeal and the Supreme Court of Justice, the latter court determined that the enforcement proceedings should continue.

13. On 9 September 2011 the court ordered the attachment (penhora).

14. On 30 October 2012 the parties reached an agreement and the enforcement proceedings ended.

THE LAW

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

15. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement. She also complained that she had not had an effective remedy in this respect. She relied on Articles 6 § 1, 13, 14, 17, 34, 41, 46 of the Convention and Article 1 of Protocol No. 1. The Court considers that the applicant’s complaints concerning the length of proceedings should be examined only from the standpoint of Articles 6 § 1 and 13 of the Convention, 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...”

16. The Government contested the applicant’s argument.

17. The period to be taken into consideration began on 23 October 2006 when the applicant sought to intervene in the criminal proceedings as assistente and were brought to a conclusion on 30 October 2012, with the end of the enforcement proceedings.

18. The Court notes, however, that the criminal proceedings ended on 3 November 2008 whereas the enforcement proceedings started on 22 May 2009.

19. The Court observes that jurisdictions cannot be held responsible for the period between the end of the criminal proceedings and the beginning of the enforcement proceedings, which is beyond the control of domestic authorities (see Gomes Almeida Henriques Moura v. Portugal (dec.), no. 43146/11, § 22, 12 March 2013). This period of time should be deducted from the overall length of proceedings which thus lasted five years, five months and fourteen days for three levels of jurisdiction.

A. Admissibility

20. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1) Alleged violation of Article 6 § 1 of the Convention

21. The Court reiterates 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).

22. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

23. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

2) Alleged violation of Article 13 of the Convention

24. The Court recalls that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 for a case to be heard within a reasonable time (Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).

25. Having regard to its case-law in the subject (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) and the fact that the Government have not submitted any arguments which would require it to depart from these findings in the present case, the Court considers that the applicant had had no effective remedy against the excessive length of the proceedings.

26. Therefore, there has been a breach of Article 13.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

27. 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

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

29. The Government contested the claim, considering it excessive.

30. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, the Court awards the applicant EUR 1,000 under that head.

B. Costs and expenses

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

32. The Government contested the claim.

33. 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 for the proceedings before the Court.

C. Default interest

34. 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 1,000 (one thousand 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 28 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Dragoljub Popović
Acting Deputy Registrar President

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