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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GUINCHO v. PORTUGAL - 8990/80 [1984] ECHR 9 (10 July 1984)
URL: http://www.bailii.org/eu/cases/ECHR/1984/9.html
Cite as: [1984] ECHR 9, (1985) 7 EHRR 223
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In the Guincho case,
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:
_______________
(*) Note by the registry: The revised Rules of Court, which entered
into force on 1 January 1983, are applicable to the present case.
_______________
Mr. G. Wiarda, President,
Mr. J. Cremona,
Mr. W. Ganshof van der Meersch,
Mr. F. Gölcüklü,
Mr. J. Pinheiro Farinha,
Mr. E. García de Enterría,
Mr. J. Gersing,
and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold,
Deputy Registrar
Having deliberated in private on 30 March and 23 June 1984,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was brought before the Court by the European
Commission of Human Rights ("the Commission") and the Portuguese
Government ("the Government"). The case originated in an application
(No. 8990/80) against that State lodged with the Commission by a
Portuguese national, Mr. Manuel dos Santos Guincho, on 20 May 1980 in
accordance with Article 25 (art. 25) of the Convention.
2. The Commission's request and the Government's application were
lodged with the registry of the Court on 18 July and 26 September 1983
respectively, within the period of three months laid down by
Articles 32 para. 1 and 47 (art. 32-1, art. 47) of the Convention.
The request referred to Articles 44 and 48 (art. 44, art. 48) and to the
declaration whereby the Republic of Portugal recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46). The application
referred to Article 48 (art. 48). The purpose of the request and the
application was to obtain a decision as to whether or not the
reasonable time requirement laid down in Article 6 para. 1 (art. 6-1)
of the Convention had been complied with.
3. In response to the inquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, the applicant stated that he wished
to take part in the proceedings pending before the Court and
designated the lawyer who would represent him (Rule 30).
4. The Chamber of seven judges to be constituted included, as ex
officio members, Mr. J. Pinheiro Farinha, the elected judge of
Portuguese nationality (Article 43 of the Convention) (art. 43), and
Mr. G. Wiarda, the President of the Court (Rule 21 para. 3 (b) of the
Rules of Court). On 21 September 1983, the President of the Court drew
by lot, in the presence of the Registrar, the names of the five other
members, namely Mr. J. Cremona, Mr. W. Ganshof van der Meersch,
Mr. L. Liesch, Mr. F. Gölcüklü and Mr. J. Gersing (Article 43 in fine
of the Convention and Rule 21 para. 4) (art. 43).
Mr. E. García de Enterría, substitute judge, subsequently replaced
Mr. Liesch, who was prevented from taking further part in the
consideration of the case (Rules 22 para. 1 and 24 para. 1).
5. Mr. Wiarda, who had assumed the office of President of the
Chamber (Rule 21 para. 5), consulted, through the Registrar, the Agent
of the Government, the Delegate of the Commission and the lawyer for
the applicant regarding the need for a written procedure
(Rule 37 para. 1). He directed on 6 October 1983 that the Agent and
the lawyer should have until 6 January 1984 to file a memorial and
that the Delegate should be entitled to file a memorial in reply
within two months from the date of the transmission to him by the
Registrar of whichever of the aforesaid documents should last be
filed. The lawyer for Mr. Guincho waived this right in a letter
received at the registry on 11 October 1983.
On 7 October 1983, the Registrar, acting on the instructions of the
President, invited the Commission and the Government to produce
certain documents; he received them on 18 October and 10 November
respectively.
The Government filed their memorial with the registry on
3 January 1984; on 27 January, the Secretary to the Commission
informed the Registrar that the Delegate would be presenting his
observations at the hearings.
6. On 6 February, the President, after consulting, through the
Registrar, the Agent of the Government, the Delegate of the Commission
and the lawyer for the applicant, directed that the hearings should
open on 28 March (Rule 38). He also authorised the Agent and lawyer
to use the Portuguese language (Rule 27 paras. 2 and 3).
On 27 February, the lawyer for Mr. Guincho transmitted to the Court
his client's claims under Article 50 (art. 50) of the Convention; on
26 March, he replied in writing to various questions that the
Registrar had put to him on the instructions of the President.
7. The hearings were held in public at the Human Rights Building,
Strasbourg, on the appointed day. Immediately beforehand, the Court
had held a preparatory meeting.
There appeared before the Court:
- for the Government
Mr. J.N. da Cunha Rodrigues, Deputy Procurador-Geral, Agent;
Mr. A.V. Coelho, Judge on the Supreme Court
and Vice-Chairman of the Supreme Council
of the Judiciary,
Mr. J.A. Sacadura Garcia Marques, Secretary
General of the Ministry of Justice and
Director General of the Judicial Services, Counsel;
- for the Commission
Mr. J.C. Soyer, Delegate;
- for the applicant
Mr. J.A. Pires de Lima, advogado, Counsel.
The Court heard addresses by Mr. da Cunha Rodrigues and Mr. Sacadura
Garcia Marques for the Government, Mr. Soyer for the Commission and
Mr. Pires de Lima for the applicant, as well as their replies to its
questions. During the hearings, the Government produced a document to
the Court.
On 9 April and 21 May 1984, the registry received supplementary
answers from the applicant and then comments thereon from the
Government.
THE FACTS
8. The applicant is a Portuguese citizen, born in 1949. He works
as an electrician and resides in Lisbon.
On 18 August 1976, he was travelling in a car with Mr. Domingos
Lopes, who was the owner and driver of the car, and with the latter's
brother, Mr. José Carlos Lopes. At Alverca, the car entered into
collision with a vehicle belonging to the Canalux Company of Lisbon
and driven by Mr. Antonio Rodrigues Baptista Dinis. Mr. Guincho was
injured and lost the use of his left eye; on 18 May 1977, he was
certified as having a permanent partial disability.
9. After being notified of the accident by the local police, the
public prosecutor's department at the Vila Franca de Xira Regional
Court instituted criminal proceedings against the drivers of both
vehicles for causing unintentional bodily harm.
On 20 January 1977, the applicant learnt that the file on the case had
been closed as a result of an amnesty granted under a Legislative
Decree.
10. On 7 December 1978, Mr. Guincho and Mr. D. Lopes ("the
plaintiffs") commenced a civil action in the Vila Franca de Xira
Regional Court against Mr. Dinis, the Canalux Company and the
"Tranquilidade" Insurance Company ("the defendants"). The applicant
claimed damages of 350,000 Escudos.
Under Article 68 of the Road Traffic Code, civil liability actions in
road traffic matters must be conducted in accordance with summary
procedure. Under the Code of Civil Procedure (Articles 783 to 800),
this procedure is characterised, inter alia, by the reduction of
certain time-limits.
11. On 9 December 1978, the judge of the second chamber
(2° juizo) of the Vila Franca de Xira Regional Court granted the
plaintiffs legal aid and ordered service of the writ on the
defendants. In this connection, the judge issued a request for
service (oficio precatorio) in Lisbon, the defendants' place of
residence.
In principle, when such a request is received at a court the registry
has two days in which to submit it to the judge. The latter must then
order the writ to be dispatched for service within five days,
following which the relevant registry official is bound to execute the
request for service within a similar five-day interval unless he has a
justifiable excuse (Articles 159 and 167 of the Code of Civil
Procedure).
On 30 January, 28 February, 2 April, 4 May and 11 June 1979, the judge
of the first chamber of the Vila Franca de Xira Regional Court,
replacing the judge of the second chamber (whose post was vacant),
insisted that the request for service of the writ be given effect.
However, this was not done until 18 June.
12. The "Tranquilidade" Insurance Company filed its defence
(contestaçao) on 27 June contesting the plaintiffs' claims. It
applied to have a third party, Mr. José Lopes (see paragraph 8
above), joined in the proceedings (intervençao principal).
On 2 July 1979, Mr. Dinis and the Canalux Company filed their
defence. They indicated that at the appropriate moment they would be
seeking to have a medical examination of the plaintiffs.
13. The registry of the Vila Franca de Xira Regional Court
transmitted the file to the judge on 4 July.
On 28 January 1981, the judge directed that the defence pleadings be
communicated to the plaintiffs and that they be allowed five days to
reply to the interlocutory application by the "Tranquilidade"
Insurance Company.
In their reply filed on 9 February 1981, the plaintiffs took issue
with the other side's submissions and claimed that the interlocutory
application was a delaying tactic as Mr. José Lopes, who was the
brother of Mr. Domingos Lopes, had suffered no prejudice and had
expressly waived his right to claim damages. In addition, they
complained that they had not been notified until January 1981 of
defence pleadings dating back to June and July 1979, and informed the
Regional Court that Mr. Guincho had lodged a petition with the
European Commission of Human Rights in connection with the length of
the proceedings. The registry of the Regional Court did not transmit
this reply to the judge until 26 March 1981.
14. In the meantime on 10 February 1981, the judge had declared
the interlocutory application admissible on the ground that no
objection had been raised against it, and he directed that a summons
be served on Mr. José Lopes, who resided in Loures. A request for
service in that jurisdiction was issued on the same day and service
was effected on 26 February.
On 27 March 1981, the above-mentioned judge, having received late
notice of the objection to the application, decided nonetheless to
maintain his decision of 10 February 1981. In a preliminary decision
(despacho saneador) taken on the same day, he declared the main action
admissible and drew up a list of uncontested facts (especificaçao) and
a list of facts that had to be clarified at the hearing
(questionario).
15. The parties did not enter an appeal (agravo) against this
decision. On 29 April, 30 April and 5 May 1981, they filed in the
registry the list of witnesses they proposed to call.
Mr. Guincho and Mr. D. Lopes asked that one of their witnesses,
Maria do Sacramento Peixoto Silva, be heard at Almada, the seat of the
Regional Court within whose jurisdiction she was said by them to
reside. The judge consented on 18 May 1981 and a request for evidence
on commission (carta precatoria) was issued on 1 June.
On 8 June, the Almada Regional Court set the hearing down for
9 July 1981. However, the Court discovered soon afterwards that
Mrs. Silva did not reside within its jurisdiction; on 12 June, it
forwarded the request to the Seixal Regional Court, the competent
court in this respect.
16. On 26 June, the judge of the Seixal Regional Court issed a
direction to the effect that he would hear the witness on 12 October.
On 9 October, the lawyer representing the first two defendants sent
the judge a telegram saying that he could not be present because of
illness.
Mrs. Silva failed to appear on 12 October. The same day, the judge
fined her and directed that she be heard on 17 November 1981.
However, the lawyer once more notified the judge by telegram that he
was still unwell, and the witness did not attend.
The judge thereupon adjourned the hearing of the witness
until 10 February 1982; Mrs. Silva was finally examined on that date.
17. The evidence taken on commission was sent to the Vila Franca
de Xira Regional Court. The judge dealing with the case received it
on 16 February 1982. The following day, he submitted the file to the
two other judges of the full Court who certified it on 18 February.
On 19 February, he directed that the hearings be held on
12 March 1982.
The hearings could not be held on that day because of the absence of
the lawyer representing the first two defendants and of two other
persons, namely Fernanda do Carmo Oliveira, in respect of whom the
summons as requested by the "Tranquilidade" Insurance Company indicated
an address where she was not known, and a witness called by the
plaintiffs, the police officer Adriano da Cruz Surreira. The latter
witness had drawn up the report on the accident (see paragraphs 8 and
9 above) but had subsequently been transferred to Oporto.
The judge therefore adjourned the hearings until 16 June and then
until 15 December 1982. He also issued a request for the evidence of
the latter witness to be taken on commission in Oporto, as he had been
asked to do by counsel for Mr. Guincho and Mr. Lopes.
18. The Oporto Regional Court summoned Mr. Surreira to appear on
14 May 1982, but on that day neither he nor the lawyers representing
the plaintiffs and the first two defendants attended and the hearing
was deferred until 3 June. However on 18 May, the judge was informed
that the witness had again changed his residence and was serving in
Montalegre; the request for evidence on commission was therefore
forwarded to the Regional Court of that town.
The Montalegre Regional Court set the hearings down for 1 June 1982.
On that day, Mr. Surreira's superiors gave notice that the demands of
public service (razoes inadiaveis de servico publico) prevented his
attendance. Counsel on both sides also failed to appear.
Examination of the witness took place finally on 17 June 1982 and the
evidence on commission was remitted to the Vila Franca de Xira
Regional Court.
19. On 29 July 1982, because of the impending court vacation,
the competent judge decided to bring the hearings forward to
20 October 1982. The hearings were duly held on that day.
Judgment was given on 25 October 1982. The Regional Court found for
the plaintiffs; it held that they were entitled to damages from the
defendants within the limits of the statement of claim but subject to
the proviso that the liability of the "Tranquilidade" Insurance
Company could not exceed 200,000 Escudos. The Regional Court awarded
Mr. D. Lopes, compensation for repairs to the car and for pecuniary
and non-pecuniary prejudice. In the case of Mr. Guincho, on the
other hand, it considered that the amount of the award could not yet
be assessed, and it reserved the decision on quantum for the procedure
for "execution" of the judgment (liquidacao en execucao de sentenca)
in accordance with Article 661 para. 2 of the Code of Civil Procedure.
The judgment was notified in writing to the applicant on 3 November.
The Regional Court subsequently liquidated the costs and expenses,
having varied its decision with regard to this point in December 1982.
The applicant was given notification thereof on 9 December 1982 and
then on 17 January 1983.
None of the parties appealed.
20. On 22 September 1983, Mr. Guincho sought "execution" of the
judgment in the Vila Franca de Xira Regional Court. Prior to that, he
had received from the "Tranquiladade" Insurance Company part of the
sum claimed.
According to the evidence adduced before the Court, the Vila Franca de
Xira Regional Court has not yet fixed the quantum of compensation to
be awarded to the applicant.
The socio-political situation
21. The Government stressed that at the relevant time the
Portuguese legal system had to operate under exceptional circumstances
on account of the restoration of democracy in April 1974, the need to
consolidate the newly set up institutions and the repatriation of
almost a million people from the former colonies. The domestic courts
had to be reorganised in a period of serious economic recession. From
1974 to 1979, the volume of litigation almost doubled.
On 25 April 1974, there were only 336 judges in office, that is
approximately four times fewer judges per inhabitant than the European
average; by the end of 1983, the number had risen to 952. In 1976,
court administration posts totalled 2,844, including 20 per cent
vacant; currently, on the other hand, 5,566 of the 5,714 existing
posts are filled.
After the Constitution was published in 1976, several measures
relating to the administration of justice were taken. Notably, access
to legal aid was improved, Acts governing the judiciary, the Supreme
Council of the Judiciary and the office of the Procurador-Geral were
passed, a judicial re-organisation of the territory was carried out
and a Centre of Judicial Studies (Centro de Estudos Judiciarios) was
set up to train judges and judicial officers.
Situation at the Vila Franca de Xira Regional Court
22. Against this general background, the population of Vila Franca
de Xira increased by nearly one quarter between 1978 and 1984, partly
because of the privileged position of the town on an important main
road and partly because of the influx of people repatriated from the
former colonies.
According to the statistics supplied by the Government, the number of
cases, both civil and criminal, before the chambers of the Vila Franca
de Xira Regional Court increased sharply: 2,377 in 1976, 2,705 in
1977, 4,079 in 1978, 4,175 in 1979 and 5,485 in 1980. As far as civil
actions were concerned, the following figures were cited:
1978 - first chamber: 206
second chamber: 199
1979 - first chamber: 457
second chamber: 337
1980 - first chamber: 579
second chamber: 508
23. The established posts of judge in the second and first
chambers of the Vila Franca de Xira Regional Court remained vacant for
more than five months (from 7 January 1979 to 26 June 1979) and nine
months (21 June 1979 - 8 April 1980), respectively. On each occasion,
the judge sitting in the other chamber was obliged to deputise during
the period of vacancy; in particular, the judge of the first chamber
acted in this way in the applicant's case (see paragraph 11 above).
24. According to uncontested information furnished by
Mr. Guincho's representative, the lawyers in Vila Franca de Xira met
on 14 December 1979 and drew the attention of the Supreme Council of
the Judiciary and the Minister of Justice to the "chaotic" situation
of the Regional Court and asked for urgent measures to be taken, in
particular the appointment of another permanent judge, three seconded
assistant judges, an investigating judge, a registrar and six court
officials whose posts were then vacant.
On 18 February 1980, they raised the matter again with the Minister of
Justice. On 29 May, they sent a telegram to the Supreme Council of
the Judiciary once more urging the appointment of judges and
emphasising that it was "humanly impossible" for the two judges in
office to cope with the backlog of cases. On 27 February 1981, they
made further representations to the Minister and the Supreme Council.
On 19 March 1981, the judge of the second chamber himself requested
the relevant department of the Ministry of Justice to recruit a number
of court officials as a matter of urgency.
Steps taken by the Government
25. The Government pointed out that from 1 October 1980 to
19 February 1981, the four judges sitting on the Vila Franca de Xira
Regional Court were aided by a seconded assistant judge. Furthermore,
as from March 1981, the Supreme Council of the Judiciary decided that
three judges from Lisbon should work on a part-time basis in in the
Vila Franca de Xira Regional Court.
The number of court officials varied as follows:
1977: 14 out of 17 posts filled;
1978: 15 out of 23 posts filled;
1979: 27 out of 33 posts filled;
1980: 24 out of 27 posts filled;
1981: 23 out of 26 posts filled;
1984: 33 posts, all filled.
According to the Government, the Supreme Council of the Judiciary
recommended especial speediness in the conduct of the applicant's
case.
PROCEEDINGS BEFORE THE COMMISSION
26. In his application of 20 May 1980 to the Commission
(no. 8990/80), Mr. Guincho complained of the length of civil
proceedings he had instituted on 7 December 1978 in the Vila Franca de
Xira Regional Court and relied on Article 6 para. 1 (art. 6-1) of the
Convention.
27. The Commission declared the application admissible on
6 July 1982. In its report of 10 March 1983 (Article 31) (art. 31), it
expressed the unanimous opinion that there had been a violation of
Article 6 para. 1 (art. 6-1). The full text of the Commission's
opinion is reproduced as an annex to the present judgment. (*)
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
28. The applicant complained of the length of the civil
proceedings brought by himself and Mr. Lopes in the Vila Franca de
Xira Regional Court. He invoked Article 6 para. 1 (art. 6-1) of the
Convention, which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by a
... tribunal ..."
The civil character of the litigation being clear and undisputed, the
sole issue to be decided in the present case is whether the
"reasonable time" requirement was complied with. In the Commission's
opinion, it was not, whereas the Government argued that there had been
no violation.
A. Period to be taken into account
29. The starting point of the relevant period - likewise a matter
on which there was no dispute - was 7 December 1978, the date
proceedings were instituted before the Vila Franca de Xira Regional
Court (see paragraph 10 above).
In the submission of the Government, the relevant "time" came to a
close on 25 October 1982 with the judgment which held that
Mr. Guincho was entitled to damages but reserved the assessment of the
quantum for the procedure for "execution" of the ruling (see
paragraph 19 above).
The Court, like the Commission, finds that this judgment did not
constitute the final decision since the Regional Court had not yet
assessed the damages to be awarded to Mr. Guincho (see paragraph 65
of the report). The Court notes that the action fell into two phases,
the first one lasting until 25 October 1982 and the second one, as yet
uncompleted, being the "execution" procedure. The latter procedure,
which was entirely dependent upon the initiative being taken by the
applicant, was not commenced until 23 September 1983, that is after
approximately eleven months (see paragraph 20 above); on the basis of
the evidence adduced before the Court, it cannot be open to any
criticism. The Court will consequently confine its examination to the
first phase, which ran from 7 December 1978 until 25 October 1982
(three years, ten months and eighteen days).
30. Such a lapse of time would at first sight seem unreasonable
for a single jurisdictional level (see, mutatis mutandis, the
Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66,
p. 11, para. 23), especially considering that the judgment in question
concerned solely the first phase of the action and did not constitute
the final decision on the applicant's claims. It thus calls for close
examination under Article 6 para. 1 (art. 6-1).
B. Criteria applicable
31. The reasonableness of the length of proceedings is to be
assessed in each case according to the particular circumstances and
having regard to the criteria laid down in the Court's case-law
(see, inter alia, the above-mentioned Zimmermann and Steiner judgment,
ibid., p. 11, para. 24).
32. In Portugal, the Government pointed out, civil procedure is
governed by the so-called "principle of determination": the power of
initiative rests with the parties (Article 264 para. 1 of the Code of
Civil Procedure) who must take all appropriate steps to further the
expeditious conduct of the litigation. In the opinion of the Court,
this principle does not however dispense the courts from ensuring the
expeditious trial of the action as required by Article 6 (art. 6)
(see the Buchholz judgment of 6 May 1981, Series A no. 42, p. 16,
para. 50). Moreover, Portuguese law places judges under a duty to
show diligence (Article 266 of the said Code); in addition,
Article 68 of the Road Traffic Code provides that cases such as
Mr. Guincho's should be dealt with under the summary procedure which
is characterised by, amongst other things, reduction of some
time-limits (see paragraph 10 above).
1. Complexity of the case
33. The Government acknowledged that the case was not complex in
substance. They nonetheless contended that the case became complex
through the behaviour of the parties, in particular as a result of the
interlocutory application by the insurance company and the failure of
witnesses and lawyers to appear (see paragraphs 12, 15-16 and
18 above). In the opinion of the Commission, on the other hand, the
proceedings did not entail any particular difficulty.
The Court agrees with the latter view: the circumstances adverted to
by the Government did not complicate the conduct of the proceedings in
a manner unusual for such litigation.
2. Conduct of the applicant
34. According to the Government, Mr. Guincho could have
accelerated the progress of the proceedings by addressing a complaint
to the Supreme Council of the Judiciary. In addition, various delays,
for example with regard to the appearance of the witnesses Maria Silva
and Adriano da Cruz Surreira, were said to be as much the
responsibility of the applicant as of the other parties. At the very
least, so the Government maintained, no blame could be laid at the
door of the Portuguese authorities for the period subsequent to
25 October 1982.
The Court has already given its ruling on this latter point (see
paragraph 29 above). With regard to the remaining arguments, the
Court would firstly note that the applicant was under no duty to refer
the matter to the Supreme Council of the Judiciary. Furthermore, the
taking of such a step would not have shortened the duration of the
procedure, since at most the Supreme Council could have imposed
disciplinary sanctions, if appropriate, on any judges or officials at
fault. Next, although the furnishing by Mr. Guincho of an incorrect
address may have somewhat delayed the hearing of Mrs. Silva
(see paragraphs 15 and 16 above), the period of time involved is
insignificant in comparison with the total length of the proceedings.
The other circumstances set out by the Government, and in particular
the failure to appear of witnesses and of lawyers for the defendants,
cannot, in the Court's view, be held against the applicant.
In sum, the dilatory nature of the proceedings cannot be attributed to
the applicant.
3. Conduct of the Portuguese authorities
35. From the evidence adduced, it can be seen that on two
occasions the case remained dormant: from 9 December 1978 until
18 June 1979, that is more than six months, for the execution of a
request sent to Lisbon for service of the writ on the defendants, and
then from 4 July 1979 until 28 January 1981, that is more than a year
and a half, for the transmission of the defence pleadings to the
plaintiffs (see paragraphs 11 and 13 above).
The Government acknowledged that matters were held up to a certain
extent during the two periods mentioned above, but they drew a
distinction betwen the rhythm at which the action proceeded and its
overall length; in the Government's submission, the latter factor
alone was material for the purposes of Article 6 para. 1 (art. 6-1)
and, in the particular circumstances, the overall length of the action
was acceptable.
The applicant contended that the existence of a total cessation of
activity during two years adversely affected the proceedings as a
whole.
36. The Court concurs in principle with the latter view. It would
also note that the two periods of almost total inactivity related to
the performance of procedural acts of a purely routine character, such
as the service of the writ on the defendants and the transmission of
the defence pleadings to the plaintiffs. These periods could thus
have been justified only by very exceptional circumstances (see,
mutatis mutandis, the above-mentioned Zimmermann and Steiner
judgment, Series A no. 66, p. 12, para. 27 in fine).
37. According to the Government, the abnormalities in the
proceedings before both the Vila Franca de Xira Regional Court and the
Lisbon Regional Court resulted from the disruption of institutions
that accompanied Portugal's return to democracy (see paragraph 21
above).
At the same time, the Government contended, the country was confronted
with a sudden and unforeseen increase in the volume of litigation. In
consequence, judges with little experience were called on to
administer justice in overburdened courts. Nonetheless, the competent
authorities, and notably the Supreme Council of the Judiciary, did
what they could to take the necessary remedial action
(see paragraph 25 above).
38. The Court recognises the value of the first argument. It
cannot overlook that the restoration of democracy as from April 1974
led Portugal to carry out an overhaul of its judicial system in
troubled circumstances which were without equivalent in most of the
other European countries and which were rendered more difficult by the
process of decolonisation as well as by the economic crisis (see
paragraph 21 above). Nor does the Court in any way underestimate the
efforts taken to improve the citizen's access to justice and the
administration of the courts, in particular after the promulgation of
the Constitution in 1976 (see paragraph 21 above).
Nonetheless, the Court must on this issue concur with the views of the
Commission and the applicant. In ratifying the Convention, Portugal
guaranteed to "secure to everyone within [its] jurisdiction the rights
and freedoms defined in Section I" (Article 1) (art. 1). In
particular, Portugal undertook the obligation of organising its legal
system so as to ensure compliance with the requirements of
Article 6 para. 1 (art. 6-1), including that of trial within a
"reasonable time" (see the above-mentioned Zimmermann and Steiner
judgment, Series A no. 66, p. 12, para. 29). The Court would once
more draw attention to the extreme importance of this requirement for
the proper administration of justice.
39. Furthermore, and without ignoring the general background
outlined above, the Court would point out that its task is confined in
principle to the examination of the particular case before it, which
essentially concerns one specific court.
At the Vila Franca de Xira Regional Court, for more than a year a
single judge had to deal with the business of two chambers because of
an unfilled vacancy: the post of judge was vacant in the second
chamber from 7 January until 26 June 1979 and then in the first
chamber from 21 June 1979 until 8 April 1980. At the same time, there
was a sharp rise in the number of pending cases, which more than
doubled between 1976 and 1980 (see paragraphs 22 and 23 above).
In order to eliminate the accumulated backlog, the competent
authorities decided in October 1980 to appoint an assistant judge; in
March 1981, they dispatched from Lisbon three judges to work in Vila
Franca de Xira on a part-time basis; the staff of the registry was
also greatly increased (see paragraph 25 above).
40. According to the established case-law of the Court, a
temporary backlog of court business does not engage the international
responsibility of the State concerned under the Convention provided
that the State takes effective remedial action with the requisite
promptness (see, as the most recent authority, the above-mentioned
Zimmermann and Steiner judgment, p. 12, para. 29).
In the present case, the Court notes, as did the Commission, that the
growth in the burden of work was spread over several years. The
Court would recall that following the promulgation of the Constitution
in 1976, various measures were introduced with a view to improving the
citizen's access to justice, at a time when nearly a million persons
repatriated from the former colonies were being resettled in Portugal
(see paragraphs 21 and 38 above). In these conditions, an appreciable
expansion in the volume of litigation was to be expected. In
addition, by December 1979 the lawyers practising at Vila Franca de
Xira had brought the matter to the attention of the Supreme Council of
the Judiciary and the Minister of Justice (see paragraph 24 above).
However, in the face of a state of affairs that had developed into one
of structural organisation, the steps taken in October 1980 and
March 1981 were evidently insufficient and belated. Although
reflecting the will to tackle the problem, they were, by their very
nature, incapable of achieving satisfactory results (see, mutatis
mutandis, the above-mentioned Zimmermann and Steiner judgment,
Series A no. 66, p. 13, para. 31).
41. Having regard to all the circumstances of the case, the Court
concludes that the exceptional difficulties encountered in Portugal
were not such as to deprive the applicant of his entitlement to a
judicial determination within "a reasonable time" (ibid., p. 13,
para. 32). There has accordingly been a breach of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
42. Article 50 (art. 50) reads as follows:
"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."
In his written comments of 27 February 1984, Mr. Guincho sought under
the head of just satisfaction the interest that he would have earned
in two years on the damages - had they been recovered - of
350,000 Escudos claimed in his civil action.
43. The Government stated that Portuguese case-law already allows
account to be taken of inflation and monetary erosion. The
applicant's lawyer had, it was said, raised to 700,000 Escudos his
client's claims when replying on 9 February 1981 to the defence
pleadings (see paragraph 13 above); yet, in the procedure for
"execution" of the judgment, the lawyer had limited himself to the
initial sum specified.
Mr. Guincho contended, on the other hand, that inflation rates and
interest due on account of the inordinate length of proceedings
constitute two different things and that in any event he had been
obliged to curtail his claims since the sum covered by the insurance
policy was subject to a maximum ceiling of 200,000 Escudos.
44. The Court would recall that the failure to ensure trial within
a "reasonable time" stemmed directly from two periods of almost total
inactivity on the part of the Regional Courts of Vila Franca de Xira
and Lisbon (see paragraph 35 above); these periods total more than
two years. The resultant lapse of time, which was additional to the
normal length of the proceedings, delayed to a corresponding extent
the completion of the litigation. Not only did it reduce the
effectiveness of the action brought, but it also placed the applicant
in a state of uncertainty which still persists and in such a position
that even a final decision in his favour will not be able to provide
compensation for the lost interest.
Accordingly, the Court awards Mr. Guincho the sum of 150,000 Escudos
by way of just satisfaction for the purposes of Article 50 (art. 50).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a breach of Article 6 para. 1
(art. 6-1);
2. Holds that the respondent State is to pay the applicant one
hundred and fifty thousand (150,000) Escudos under Article 50
(art. 50).
Done in English and in French at the Human Rights Building,
Strasbourg, this tenth day of July, one thousand nine hundred and
eighty-four.
For the President
Signed: Walter GANSHOF VAN DER MEERSCH
Judge
For the Registrar
Signed: Herbert PETZOLD
Deputy Registrar