LEONG POY v. PORTUGAL - 5190/14 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section Committee)) [2015] ECHR 1078 (08 December 2015)

In the case of Leong Poy v. Portugal,

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

          Boštjan M. Zupančič, President,
          Paulo Pinto de Albuquerque,
          Iulia Antoanella Motoc, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 17 November 2015,

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

PROCEDURE

1. The case originated in an application (no. 5190/14) 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, Mrs Leong Poy Chin Gut Khun (“the applicant”), on 27 December 2013.

2. The applicant was represented by Mr O. A. Novais da Silva, a lawyer practising in Lisbon. The Portuguese Government (“the Government”) were represented by their Agent, Mrs M. F. da Graça Carvalho, Deputy Attorney-General.

3. On 1 December 2014 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1946 and lives in Lisbon.

5. The circumstances of the case concern a dispute between the applicant and company C.C. over the execution of a works contract (contrato de empreitada) pursuant to which the latter undertook, in 1996, to build the applicant a house.

6. On 22 May 2007 the applicant instituted civil proceedings in the Oeiras Civil Court against company C.C. for the alleged failure in the execution of the contract.

7. Between 22 May and 29 October 2007 company C.C. and the applicant submitted submissions in reply (constestação) and new submissions (réplica). Company C.C. argued, in particular, that the court had already decided in a case on the same subject (caso julgado).

8. On 26 August 2008 the Oeiras Civil Court gave directions considering that it had already decided on the same subject in a previous case (despacho saneador). The applicant appealed against this decision before the Lisbon Court of Appeal, which on 8 May 2009 revoked the Oeiras Civil Court decision and ordered the examination of the case. On an unknown date company C.C. appealed against this decision to the Conference of the Lisbon Court of Appeal, which on 16 July upheld its decision of 8 May 2009.

9. On 12 February 2010 the Oeiras Civil Court gave new directions setting out the questions which needed to be assessed. The applicant challenged the decision and both parties submitted evidence.

10. On 18 November 2010 held the first hearing. Until 19 September 2011 the Oeiras Civil Court listed eleven hearings, in which several witnesses were heard.

11. On 30 September 2011 the Oeiras Civil Court adopted a judgment ruling against the applicant.

12. On 23 January 2012 the applicant challenged the outcome of the proceedings before the Lisbon Court of Appeal. On 14 June 2012 the case-file was sent to the Lisbon Court of Appeal. Meanwhile, first-instance judge had to analyse a question of nullity which had been raised by the parties in the grounds of appeal submitted.

13. On 29 January 2013 the Lisbon Court of Appeal upheld the first-instance judgment.

14. On 1 March 2013 the applicant appealed to the Supreme Court of Justice, which dismissed the appeal for being lodged out of time. The applicant challenged this decision, which was upheld on 25 July 2013 by a decision of the Vice-President of the Supreme Court of Justice.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

15. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

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

16. The Government contested that argument.

17. The period to be taken into consideration began on 22 May 2007 and ended on 25 July 2013. It thus lasted six years and two months for three levels of jurisdiction.

A. Admissibility

18. 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

19. The Government submitted that the length of proceedings in the present case had complied with the “reasonable time” requirement of Article 6.

20. 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).

21. The Court observes that the proceedings in the applicant’s case commenced on 22 May 2007 and ended on 25 July 2013. Their length thus amounted to six years and two months for three levels of jurisdiction and almost four years for just one level of jurisdiction.

22. The Court notes, firstly, that the issue decided by the courts does not appear to have been particularly complex.

23. In so far as the applicant’s conduct is concerned, the Court notes that she took no steps which could have significantly contributed to the delay of the proceedings.

24. Turning to the conduct of the authorities, the Court observes some periods of inactivity on the part of the Oeiras Civil Court for which the Government provided no explanation: between 29 October 2007, when company C.C. submitted its last submissions, and 26 August 2008, when the court considered that it had already decided in a case on the same subject (see paragraphs 7-8 above); and between 16 July 2009, when the case was remitted to the Oeiras Civil Court, and 12 February 2010, when it gave second instructions setting out the legal questions which needed to be assessed (see paragraphs 8-9 above). There is nothing in the facts of the case or in the Government’s observations which would justify such lengthy periods of inactivity, which amounted to seventeen months.

25. 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 (see Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, 10 June 2008), the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

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

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 96,589.89 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage.

29. The Government contested the claim.

30. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 975 under that head.

B. Costs and expenses

31. The applicant did not make a claim in respect of costs and expenses. Accordingly, there is no call to make an award under this head.

C. Default interest

32. 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 Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months EUR 975 (nine hundred and seventy five euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 8 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Boštjan M. Zupančič
Deputy Registrar President

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