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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> BARAONA v. PORTUGAL - 10092/82 [1987] ECHR 13 (8 July 1987)
URL: http://www.bailii.org/eu/cases/ECHR/1987/13.html
Cite as: (1991) 13 EHRR 329, [1987] ECHR 13
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In the Baraona case*,
_______________
* Note by the Registrar: The case is numbered 11/1986/109/157. The
second figure indicates the year in which the case was referred to the
Court and the first figure its place on the list of cases referred in
that year; the last two figures indicate, respectively, the case's
order on the list of cases and of originating applications (to the
Commission) referred to the Court since its creation.
_______________
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. Thór Vilhjálmsson,
Sir Vincent Evans,
Mr. C. Russo,
Mr. R. Bernhardt,
Mr. J. De Meyer,
Mr. J. Melo Franco, ad hoc judge,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 27 February and 23 June 1987,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") and the Portuguese Government ("the
Government") on 28 January and 4 February 1986 respectively, within
the three-month period laid down in Article 32 § 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 10/092/82) against the Republic of Portugal lodged
with the Commission on 6 September 1982 by Mr. Joachim Baraona, a
Portuguese national.
2. The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Portugal recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46), and
the Government's application referred to Article 48 (art. 48). Their
purpose was to obtain a decision from the Court as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Article 6 § 1 (art. 6-1).
3. In response to the enquiry made in accordance with
Rule 33 § 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
ex officio Mr. J. Pinheiro Farinha, the elected judge of Portuguese
nationality (Article 43 of the Convention) (art. 43), and
Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On
19 March 1986, in the presence of the Registrar, the President of the
Court drew by lot the names of the other five members, namely
Mr. Thór Vilhjálmsson, Mr. B. Walsh, Sir Vincent Evans,
Mr. R. Bernhardt and Mr. J. De Meyer (Article 43 in fine
of the Convention and Rule 21 § 4) (art. 43).
As Mr. Pinheiro Farinha had withdrawn pursuant to Rule 24 § 2, the
Government on 21 April appointed Mr. João Augusto Pacheco e Melo
Franco, of the Supreme Court of Portugal, to sit as an ad hoc
judge (Article 43 of the Convention and Rule 23) (art. 43).
Subsequently, Mr. Walsh, who was unable to attend, was replaced
by Mr. C. Russo, substitute judge.
5. Mr. Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5) and, through the Registrar, consulted the Agent of the
Government, the applicant's lawyer and the Delegate of the Commission
on the need for a written procedure (Rule 37 § 1). On 4 April 1986,
he decided that the said Agent and lawyer should have until 30 June to
file memorials and that the Delegate should be entitled to reply in
writing within two months.
The Government and the applicant filed their memorials with the
registry on 27 and 30 June 1986 respectively; on 22 July, the
Secretary to the Commission informed the Registrar that the Delegate
would submit his observations at the hearing.
6. Having consulted - through the Registrar - the Agent of the
Government, the Delegate of the Commission and the applicant's lawyer,
the President directed on 10 December 1986 that the oral proceedings
should commence on 24 February 1987 (Rule 38). He subsequently
authorised the Agent to use the Portuguese language (Rule 27 §§ 2
and 3).
On 12 February, the Registrar received from the Commission several
documents he had requested on the President's instructions.
7. The hearing was held in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
- for the Government
Mr. I. Cabral Barreto, Deputy Procurador-Geral, Agent,
Mr. J.N. Cunha Rodrigues, Procurador-Geral,
Mr. J. Figueiredo Dias, Professor of Law in the
University of Coimbra,
Mr. J. Miranda, Professor of Law in the
University of Lisbon, Counsel;
- for the Commission
Mr. A.S. Gözübüyük, Delegate;
- for the applicant
Mr. J. Lebre de Freitas, advogado,
Mr. J. Pires de Lima, advogado, Counsel.
The Court heard addresses and submissions by Mr. Cabral Barreto,
Mr. Figueiredo Dias and Mr. Miranda for the Government, by
Mr. Gözübüyük for the Commission and by Mr. Lebre de Freitas and
Mr. Pires de Lima for the applicant, as well as their replies to its
questions. The Agent of the Government and counsel for the applicant
filed several documents.
8. On 6 May 1987, the Delegate of the Commission lodged with the
registry his comments on the application of Article 50 (art. 50).
AS TO THE FACTS
I. Particular circumstances of the case
9. The applicant, a Portuguese national born in 1930, is a
businessman resident at Vitoria in Brazil.
Until May 1975, he lived with his wife and their five children at
Cascais (in Portugal). On 17 May 1975, the chairman of the
"Commission for co-ordinating the disbandment of the PIDE/DGS (the
International Political Police for the Protection of the
State/Directorate-General of Security) and the LP (the Portuguese
Legion)" ordered the applicant's immediate arrest on the grounds that
he was a "dangerous reactionary" and that it was necessary to
"investigate his reactionary activities". At the time, following the
attempted coup of 11 March 1975, Portugal was going through a
difficult period, which lasted until the adoption of the new
Constitution on 25 April 1976.
Having learned that he was about to be arrested, the applicant fled to
Brazil with his family and did not return to Portugal until
September 1978, after the warrant for his arrest had been revoked.
10. In his absence the employees of his civil-engineering firm
took over the company and other assets of his, including his house,
furniture and bank accounts. On 31 May 1976, the Cascais District
Court declared the applicant's business insolvent. Furthermore, the
Cofre da Previdência, a public bank from which the applicant had
bought his house, repossessed the house for default on payment and
sold it to someone else.
The applicant was later able to reach a friendly settlement and
recover possession of the house on payment of certain sums to the bank
and to the other person involved.
11. On 30 July 1981, the applicant brought a civil action in the
Administrative Court (auditoría administrativa) of Lisbon seeking
damages from the State under Legislative Decree no. 48.051 of
21 November 1967 on the State's non-contractual liability for acts of
public administration (see paragraph 30 below). He contended that the
warrant for his arrest had been illegal as it did not specify an
offence and did not have a "proper purpose". The applicant claimed
8,800,000 escudos in compensation for pecuniary and non-pecuniary
damage.
The next day, the court registered the originating application
(petição inicial) and issued a summons to the defendant - represented
by State Counsel's Office (ministério público) - requesting a reply
within twenty days, in accordance with Article 486 § 1 of the Code of
Civil Procedure (see paragraph 32 below).
12. On 28 October 1981 and again on 27 January 1982, the
Administrative Court granted a three-month extension of time applied
for by State Counsel under Article 486 § 3 of the aforementioned Code
(see paragraph 32 below).
13. On 26 April 1982, State Counsel again applied for an
exceptional thirty-day extension on the ground that he needed more
information in order to prepare his submissions in reply
(contestação). The court granted the application on 28 April 1982.
Two further applications for exceptional thirty-day extensions were
made by State Counsel on 8 June and 21 July 1982, on the ground that
he did not yet have all the material with which to prepare his reply.
The court granted these applications on 14 June and 27 July
respectively.
14. On 30 July 1982, the applicant complained to the court of this
series of extensions and requested copies of some of the documents in
the file in order to complain to the Supreme Council of the Judiciary
and to the European Commission of Human Rights of a breach of
Article 6 § 1 (art. 6-1) of the Convention.
15. On 29 September 1982, he lodged notice of an appeal against an
interlocutory order (de agravo - "interlocutory appeal") to the
Supreme Administrative Court (Supremo Tribunal Administrativo) in
respect of the Lisbon Administrative Court's decision of 27 July in
allowing State Counsel more time. He lodged the appeal with the lower
court, with a request that it should be forwarded immediately to the
higher court.
On 15 October 1982, the Administrative Court declared the
interlocutory appeal admissible but ordered that it should be placed
on the file with the main appeal and not separately forwarded to the
Supreme Administrative Court straightaway. It added that the
interlocutory appeal had no suspensive effect.
16. In his statement of grounds of appeal (alegações) dated
26 October 1982, the applicant contended that the Administrative Court
had infringed Article 486 § 3 of the Code of Civil Procedure in
extending the time allowed to State Counsel to file his pleadings by
more than six months without exceptional cause, and that State Counsel
had failed to specify what evidence and information he still needed.
Such an extension of time could not be granted by the court
arbitrarily, but only on exceptional grounds, and it could not exceed
six months. Yet on this occasion more than a year had passed without
State Counsel submitting his pleadings or giving valid reasons for not
doing so.
17. On 4 November 1982, State Counsel applied for another
exceptional ten-day extension on the ground that the Administrative
Court had moved into other premises and that for a time this had
halted his office's work. When invited by the court on 9 November to
comment on this application, the applicant replied - on 15 November -
that he considered it unjustified; he further demanded that it should
be refused and that the time allowed to State Counsel should be
declared to have expired.
18. State Counsel's pleadings were filed with the Administrative
Court on 18 November and immediately forwarded to Mr. Baraona by the
registrar of the court.
In the belief that the Administrative Court had decided to include
these in the file and have a copy served on him, the applicant lodged
with that court notice of an interlocutory appeal to the Supreme
Administrative Court on 25 November and requested that the appeal
should be forwarded immediately to the higher court and should have
suspensive effect.
On 30 November, the applicant nevertheless filed his reply (réplica)
to the pleadings lodged by State Counsel, who made a rejoinder
(tréplica) on 17 December.
19. On 21 December 1982, State Counsel submitted his observations
(contra-alegações) on the applicant's interlocutory appeal of
29 September. As grounds for the requested extensions, he alleged the
need not only to assemble evidence but more particularly to decide on
the general thrust of his pleadings, especially as regards objections.
Moreover, there was no requirement under Article 486 § 3 of the Code
of Civil Procedure to give detailed reasons for his application; a
general justification was sufficient. Admittedly, Article 266 of the
Code of Civil Procedure required the court to remove any hindrance
delaying the proceedings, but that was a discretionary power which in
the present case could not be usefully exercised.
20. On 11 February 1983, the Administrative Court of Lisbon
reversed its decision of 27 July 1982 to allow State Counsel more time
and instead refused the application. Relying on Article 486 § 3 of
the Code, it ruled that an extension of time could only be granted if
State Counsel neither had the necessary information nor could obtain
it in the time allowed. In addition, he had to specify the subject on
which he needed information and the steps he had taken to obtain it.
In the present case he had simply said he needed more information,
without giving further particulars.
The court accordingly excluded as having been filed out of time all
pleadings submitted by the parties after 27 July 1982, that is to say
State Counsel's pleadings of 18 November 1982, the applicant's reply
of 30 November and the rejoinder of 17 December, and ordered that they
be removed from the file.
Noting, lastly, that State Counsel's pleadings had been sent to the
applicant by the registrar and not by the court itself, the court
refused to entertain the applicant's interlocutory appeal of
25 November 1982, as no appeal lay to the higher court against actions
by the registrar, and a complaint should be made to the court itself.
21. On the same day, the court ordered a number of investigatory
measures, including a search for the warrant issued for Mr. Baraona's
arrest in 1975.
When it became apparent that no trace of the warrant could be found,
the Administrative Court gave a preliminary decision (despacho
saneador) on 30 December 1983 declaring the case admissible and
setting out a list of the facts agreed by the parties (especificação)
and a list of matters to be clarified at the hearing (questionário).
22. On 20 January 1984, under Article 511 § 2 of the Code of Civil
Procedure, the applicant lodged a complaint against this decision. He
argued that, as State Counsel's pleadings had been withdrawn from the
case file, all the allegations he had made in his own statement of
claim were to be regarded as admitted, since Article 485
sub-paragraph (b) and Article 490 § 4 of the Code of Civil Procedure
(see paragraph 32 below) had been abrogated by Article 6 § 1
(art. 6-1) of the Convention, which laid down the principle of
equality of arms. Consequently, all the matters which the court had
considered needed clarification at the hearing should have been put in
the especificação as having been conceded.
State Counsel's comments on the complaint were lodged with the court
on 27 January.
23. On 2 February 1984, the registrar submitted the file to the
court, and on 12 April the judge dismissed the complaint, apologising
for the delay caused by his absence abroad on official business from
January to March. He acknowledged that the applicant's arguments were
lent support by a learned article and by a court decision at first
instance; but the latter had been set aside by the Oporto Court of
Appeal on 7 June 1983, and he stated his agreement with that court's
decision: State Counsel's Office had less opportunity to meet those it
represented, particularly where the defendant was a State body. In
addition, the law, in order to be fair, sometimes had to treat the
parties differently if they were not to be equal on paper only; the
principle of equality of arms entailed compensating for initial
inequality - for example, by providing legal aid or setting more
generous time-limits in the case of persons resident in a distant
country or whose whereabouts were unknown.
24. On 8 May 1984, this decision was communicated to Mr. Baraona,
who on 10 May 1984 lodged notice of an interlocutory appeal against it
to the Supreme Administrative Court.
On 17 May, the Administrative Court decided to forward the appeal to
the higher court together with the entire case file and to give it
suspensive effect.
In his statement of grounds of appeal dated 5 June, the applicant put
forward substantially the same arguments as in the complaint he had
made to the Administrative Court of Lisbon on 20 January. On 20 and
24 July 1984, State Counsel and the latter court submitted their
observations on the appeal.
25. The file reached the Supreme Administrative Court in
October 1984, whereupon State Counsel was asked to submit his opinion,
and two judges of the court then drew up their report.
On 21 March 1985, the Supreme Administrative Court dismissed both
interlocutory appeals, of 29 September 1982 and 10 May 1984.
With regard to the first appeal, against the Administrative Court's
decision of 27 July 1982, the Supreme Court found that on
11 February 1983 the judge below had himself rectified the situation
by rescinding the impugned decision and excluding all pleadings
submitted after 27 July 1982 as being out of time.
With regard to the second appeal, against the Administrative Court's
decision of 12 April 1984, the Supreme Court ruled that, contrary to
the applicant's contention, Article 485 sub-paragraph (b) of the Code
of Civil Procedure had not been abrogated by Article 6 § 1 (art. 6-1)
of the Convention. The State was in any case differently placed from
private companies. Accordingly, not all Mr. Baraona's submissions as
to the facts were to be regarded as having been conceded; it was for
the Administrative Court to consider them in the light of evidence
adduced at the hearing.
26. On 8 April 1985, the applicant appealed against this decision
(acordão) to the Constitutional Court, asking it to rule whether
Article 485 sub-paragraph (b) was still in force.
The Constitutional Court registered the appeal on 16 April 1985. The
applicant and State Counsel filed their pleadings on 15 July and
24 October 1985 respectively. State Counsel submitted that the court
had no jurisdiction, as no breach of the Constitution had been alleged
by the applicant either at first instance or before the Supreme
Administrative Court. Mr. Baraona replied on 12 November 1985 that a
breach of the principle of equality of arms was contrary both to the
Convention and to the Constitution.
On 5 March 1986, the Constitutional Court dismissed the objection and
proceeded to consider the question of the principle of equality of
arms. In a judgment on 19 November 1986, it dismissed the appeal, and
the applicant immediately challenged the judgment as being null and
void; but it was confirmed on 14 January 1987.
27. The proceedings in the Administrative Court of Lisbon have
since resumed and are at the preliminary stage.
II. Law governing the State's non-contractual liability
28. Following the revolution of 25 April 1974, the "Armed Forces
Movement" promulgated Law no. 3/74, of 14 May, which upheld the
existing schedule of basic rights and freedoms in the 1933
Constitution and also laid down fundamental principles concerning
judicial independence and defence rights. Article 8 § 17 of the 1933
Constitution recognised "the right to reparation for actual
infringements of rights"; as to non-pecuniary damage, statutory
provision could be made for financial compensation.
Most of the existing provisions of civil and criminal law were
retained, in particular Legislative Decree no. 48.051 of
21 November 1967 on the State's non-contractual liability.
By Legislative Decree no. 36/75 of 31 January 1975, the powers of the
"Commission for co-ordinating the disbandment of the PIDE/DGS and
the LP" - a commission which had been set up pursuant to an order
(despacho) issued by the Army Chief of Staff on 7 June 1974 - cover
the preparation of proceedings against individuals who belonged to the
relevant police forces or collaborated with them (Article 2 § 3); the
chairman of the Commission had the same powers as those conferred on
commanding officers of the military regions under the Military
Criminal Code (Article 2 § 4).
29. By Article 21 of the Constitution of 25 April 1976:
"1. The State and other public bodies shall be jointly and severally
liable in civil law with the members of their agencies, their
officials or their agents for actions or omissions in the performance
of their duties, or caused by such performance, which result in
violations of rights, freedoms or safeguards or in prejudice to
another party.
2. Wrongly convicted persons shall have a right to retrial and to
compensation for damage sustained, on conditions to be laid down by
law."
The Constitution was amended by Constitutional Law no. 1/82 of
27 September 1982, Article 22 of which reproduces the foregoing
Article 21 § 1 unchanged, however.
30. The Civil Code of 1966, which is still in force, deals with
the State's civil liability but only in respect of acts of "private
administration" (Article 501). As regards acts of "public
administration", Legislative Decree no. 48.051 of 21 November 1967
contains provisions on the non-contractual liability of the State and
other public bodies for acts due to negligence, abuse of authority or
deceit by their agencies or officials. The most important of these
are as follows:
"Article 2
1. The State and other public bodies shall be liable to third
parties in civil law for such breaches of their rights or of legal
provisions designed to protect the interests of such parties as are
caused by negligent acts (actos ilicitos culposamente praticados) of
their agencies or officials in the performance of their duties or as a
consequence thereof.
2. Where any compensation is paid pursuant to the previous
paragraph, the State and other public bodies shall have a right of
recourse against the members of the agency or the officials at fault
if they failed to act with proper diligence.
Article 3
1. Members of the agency and officials of the State and other
public bodies shall be liable to third parties in civil law for
unlawful acts in breach of their rights, or of legal provisions
designed to protect the interests of such parties, where they have
exceeded their powers or if they acted with wrongful intent in
exercising them.
2. The public body shall always be jointly liable with the
members of the agency or the officials concerned for acts performed
with wrongful intent.
Article 4
1. The negligence (culpa) of the members of the agency or of the
officials concerned shall be assessed in accordance with Article 487
of the Civil Code.
2. Where more than one person is liable, Article 497 of the Civil
Code shall apply.
Article 5
1. The right to compensation under the foregoing provisions shall
be time-barred after expiry of the periods laid down in the Civil
Code.
2. Limitation of actions by the State to enforce its right of
indemnity is likewise governed by civil law.
..."
31. Under the Administrative Code, actions for damages in respect
of liability of public authorities come within the jurisdiction of the
administrative courts (auditores - Articles 815 and 820). With the
exception of certain rules regarding locus standi and limitation
(Articles 824 and 829), Article 852 explicitly refers to the
provisions governing ordinary civil procedure.
Decisions of administrative courts are subject to appeal as to the
merits, interlocutory appeal and complaint (Article 853). Certain
interlocutory appeals have a suspensive effect and must be referred
forthwith to the Supreme Administrative Court, in particular those
made against a decision to dismiss a complaint against a preliminary
decision (Article 859 sub-paragraph (d)), while others must be
forwarded with the case file when the final decision is appealed, and
have no suspensive effect (Article 860).
32. The procedure in question must therefore comply with the rules
in the Code of Civil Procedure.
Article 484 § 1 of the Code provides that "if the defendant fails to
submit pleadings in reply notwithstanding the proper issue of a
summons ..., the facts as pleaded by the plaintiff shall be deemed to
have been admitted".
Article 485 lays down certain exceptions to this principle, however;
in particular, sub-paragraph (b) states that the rule does not apply
where the defendant is a legal person.
Under Article 486 § 1 the defendant has twenty days in which to reply
to the claim, but paragraph 3 of the same Article provides:
"State Counsel shall be granted more time when he needs information he
cannot obtain within the time-limit or when he is awaiting a reply
from a higher authority. The extension may not exceed six months
unless exceptional cause is shown."
Article 490 § 1 of the Code of Civil Procedure stipulates that "the
defendant shall reply clearly to each item of fact in the originating
application; items not expressly (especificadamente) disputed shall be
regarded as agreed between the parties except where obviously
inconsistent with the defence as a whole, or not capable of being
admitted, or provable only by written document".
By paragraph 4, however, this provision applies neither to defence
counsel assigned by the court nor to State Counsel.
Under Article 511 § 2, once the parties have been informed of the
preliminary decision they may make "any complaints they wish about the
list of the facts agreed by the parties or the list of matters to be
clarified at the hearing on grounds of procedural irregularity
(deficiência), irrelevance (excesso), complexity or obscurity".
PROCEEDINGS BEFORE THE COMMISSION
33. In his application of 6 September 1982 to the Commission
(no. 10092/82), the applicant complained of the length of the
proceedings instituted by him on 30 July 1981 in the Administrative
Court of Lisbon, which were still pending at first instance. He
relied on Article 6 § 1 (art. 6-1) of the Convention.
34. The Commission declared the application admissible on
5 October 1984. In its report of 8 October 1985 (made under
Article 31) (art. 31), it unanimously held that there had been a
violation of Article 6 § 1 (art. 6-1). The full text of the
Commission's opinion is reproduced as an annex to this judgment.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)
35. The applicant complained of the length of time taken to try
the action he brought against the State in the Administrative Court of
Lisbon on 30 July 1981; he alleged a breach of Article 6 § 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 ..."
A. Applicability of Article 6 § 1 (art. 6-1)
36. The Commission and the applicant were of the view that this
provision was applicable in that the action was for compensation for
damage a public servant caused by an act which infringed the
applicant's rights - in particular his right to liberty and his right
of property.
37. The Government contended, on the contrary, that Article 6 § 1
(art. 6-1) was not material. In their submission, the impugned
measure - the warrant issued on 17 May 1975 for Mr. Baraona's arrest
(see paragraph 9 above) - had no basis in Portuguese law at that time.
Accordingly, it could not give rise to liability on the part of the
State or entail any civil obligations on it independent of the
obligations of the chairman of the "Commission for co-ordinating the
disbandment of the PIDE/DGS and the LP", who had signed the warrant.
The position in the instant case, they claimed, was that an act had
been carried out against the background of a revolution. The damage
which flowed from it could not therefore be looked at in the context
of the general doctrine of the State's non-contractual liability; it
came within the ambit of public-law relations between the victim and
the State.
In short, the respondent State did not deny all responsibility for
excesses committed during the period of the revolution, but considered
that the problem had to be approached from a different angle. It
maintained that in the absence of any special law on the subject, it
had not yet decided on the necessary measures to compensate victims of
such excesses.
The Government thus seemed to be denying not only that the right was a
"civil" one but even that the right existed at all in domestic law.
1. Existence of a dispute ("contestation") over a right
38. That there is a dispute is not open to question. The dispute
is over whether or not Mr. Baraona has any right at all to recover
financial compensation for the damage flowing from the warrant for his
arrest issued in 1975 (see paragraphs 9-11 above).
39. The respondent Government recognised that two "attitudes" to
the matter are "conceivable" (memorial to the Court, section III,
paragraph 1.5).
On the first view, which the Government take, the democratic State
founded on the rule of law, which was established by the Constitution
of 25 April 1976, cannot be held liable for excesses during the period
of the revolution.
On the second view, taken by the applicant, the fundamental rights set
forth in the 1933 Constitution were confirmed by Law no. 3/1974,
promulgated by the "Armed Forces Movement" on 14 May 1974;
furthermore, Legislative Decree no. 48.051 of 21 November 1967, which
contains provisions on the non-contractual liability of the State and
other public bodies for acts of "public administration", has never
ceased to be in force.
On the basis of this second argument, the applicant considers that the
impugned arrest warrant, which was issued by a public servant (the
chairman of the "Commission for co-ordinating the disbandment of the
PIDE/DGS and the LP") acting as such, gave rise to civil liability on
the part of the Portuguese State.
40. There is no doubt that the return to democracy from April 1974
onwards caused Portugal to reorganise its social and political
structure in difficult circumstances unequalled in other European
countries, and tribute must be paid to the efforts made by the
Portuguese people to consolidate democracy (see, mutatis mutandis, the
Guincho judgment of 10 July 1984, Series A no. 81, p. 16, § 38).
However, it is not for the Court to assess either the merits of the
applicant's claim under Portuguese legislation or the influence that
the revolutionary situation resulting from the events of April 1974
may have had on the application of that legislation; such questions
fall within the exclusive jurisdiction of the Portuguese courts.
41. It is sufficient for the Court to note that the applicant
could claim on arguable grounds to have a right that is recognised
under Portuguese law as he understands it (see, among other
authorities, the James and Others judgment of 21 February 1986,
Series A no. 98, p. 46, § 81).
In this connection, it points out, as the Commission did, that the
Administrative Court of Lisbon gave a preliminary decision on
30 December 1983 declaring the case to be admissible (see paragraph 21
above) and that State Counsel did not appeal.
2. Whether the right is a civil right
42. As to whether the right is a "civil" right, the Court refers
to its established precedents, which the Government, moreover, did not
challenge (see, among other authorities, the König judgment of
28 June 1978, Series A no. 27, pp. 31-32, §§ 91-95; the Sporrong and
Lönnroth judgment of 23 September 1982, Series A no. 52, pp. 29-30,
§§ 79-80; and the Zimmermann and Steiner judgment of 13 July 1983,
Series A no. 66, p. 10, § 22).
From these precedents it emerges among other things that the concept
of "civil rights and obligations" is not to be interpreted solely by
reference to the respondent State's domestic law (see the König
judgment previously cited, Series A no. 27, pp. 29-30, §§ 88-89) and
that Article 6 § 1 (art. 6-1) applies irrespective of the status of
the parties, as of the character of the legislation which governs how
the dispute is to be determined and the character of the authority
which is invested with jurisdiction in the matter; it is enough that
the outcome of the proceedings should be "decisive for private rights
and obligations" (see the Ringeisen judgment of 16 July 1971, Series A
no. 13, p. 39, § 94).
43. It is therefore not decisive that, with regard to the State's
civil liability, Portuguese law distinguishes between acts of "private
administration" covered by Article 501 of the Civil Code and acts of
"public administration" dealt with in Legislative Decree no. 48.051 of
1967 (see paragraph 30 above); or that disputes concerning the latter
come within the jurisdiction of the administrative courts (see
paragraph 31 above). In any case, the Portuguese State's liability
for acts of "public administration" is based on the general principles
of civil liability set out in the Civil Code, and the administrative
courts follow the Code of Civil Procedure in the matter (see
paragraphs 30 and 31 above).
44. The right to compensation asserted by the applicant is a
private one, because it embodies a "personal and property" interest
and is founded on an infringement of rights of this kind, notably the
right of property (see, mutatis mutandis, the Zimmermann and Steiner
judgment previously cited, Series A no. 66, p. 10, § 22). The arrest
warrant complained of caused Mr. Baraona to flee to Brazil with his
family, abandoning his house, all his property and his business, which
was eventually declared insolvent (see paragraphs 9-10 above).
Article 6 § 1 (art. 6-1) of the Convention accordingly applies.
B. Compliance with Article 6 § 1 (art. 6-1)
45. It remains to be ascertained whether the case has been heard
within a "reasonable time".
The applicant and the Commission submitted that it had not been; the
Government disagreed.
1. Period to be considered
46. The action in the Administrative Court of Lisbon was brought
by the applicant on 30 July 1981 (see paragraph 11 above), and that
court has still not determined the merits of the case. The
proceedings have therefore already lasted six years, which seems a
considerable length of time in view of the preliminary nature of the
decisions taken so far; a review of the way the proceedings were
conducted is accordingly called for under Article 6 § 1 (art. 6-1).
2. Criteria to be used in assessing the reasonableness of the time
taken
47. The reasonableness of the length of proceedings must be
assessed in the light of the particular circumstances of the case and
having regard to the criteria laid down in the Court's case-law, in
particular the complexity of the case, the behaviour of the applicant
and the conduct of the relevant authorities (see, among other
authorities, the Zimmermann and Steiner judgment previously cited,
Series A no. 66, p. 11, § 24).
48. The impugned proceedings were governed by the provisions of
the Portuguese Code of Civil Procedure, under which it is for the
parties - in the instant case, the applicant and State Counsel -
to take the initiative. This did not, however, absolve the
Administrative Court from ensuring that the proceedings made proper
headway (see the Guincho judgment previously cited, Series A no. 81,
p. 14, § 32, and the Capuano judgment of 25 June 1987, Series A
no. 119, § 24). It should furthermore be noted that Mr. Baraona
protested against the extensions of time granted by the court (see
paragraphs 14-17 above).
(a) Complexity of the case
49. The Government prayed in aid the fact that the case was a very
complex one; they claimed that State Counsel had been obliged to seek
a succession of extensions because he had had trouble obtaining the
necessary documents, as the facts of the case went back to the time of
a revolution; to that were added difficult legal issues and State
Counsel's need to adopt a common policy for similar cases.
50. The Court considers, as the Commission did, that the case
involved points of fact and law of some complexity. In particular,
the applicant's interlocutory appeal (of 10 May 1984) raised a
difficult question, which was dealt with at three levels of
jurisdiction over a period of nearly three years, namely equality of
arms in the proceedings complained of (see paragraph 24 above).
Even so, the procedural steps taken hitherto by the Administrative
Court, such as the decision of 30 December 1983 (see paragraph 21
above), have been of a preliminary nature and thus do not justify the
time that has elapsed.
(b) Behaviour of the applicant
51. Mr. Baraona did not complain of the various extensions of time
granted to State Counsel until 30 July 1982, almost a year after State
Counsel had been asked to file his pleadings (see paragraph 14 above).
In his submission, however, it would have been pointless to take such
a step any earlier, as the said extensions were based on domestic law
(see paragraph 32 above).
In this connection, the Court notes that the Administrative Court of
Lisbon did not set aside the decision of 27 July 1982 until
11 February 1983 (see paragraph 20 above), nearly three months after
State Counsel had finally submitted his pleadings.
52. In the Government's view, the fact that the court had still
not determined the merits of the case was attributable to the parties,
who had availed themselves of their procedural rights.
53. The actions of State Counsel cannot be blamed upon the
applicant but can certainly be held against the State, as they were
taken by one of its agencies (see paragraphs 54-56 below).
For his part, Mr. Baraona lodged two interlocutory appeals.
The first of these, on 29 September 1982, did not have any suspensive
effect and did not therefore prolong the proceedings
(see paragraph 15 above).
The same is not true of the second interlocutory appeal, which was
lodged on 10 May 1984 (see paragraph 24 above) and halted the
proceedings for nearly three years. Mr. Baraona contended in his
appeal that once State Counsel's pleadings were excluded from the file
(see paragraph 20 above), all the facts pleaded in his own statement
of claim had to be presumed to have been admitted by State Counsel in
virtue of the principle of equality of arms enshrined in Article 6 § 1
(art. 6-1) of the Convention, which he argued had abrogated
Article 485 sub-paragraph (b) and Article 490 § 4 of the Code of Civil
Procedure (see paragraph 32 above).
A decision in the applicant's favour could therefore have had an
influence on the outcome of the proceedings, since it would have
simplified the Administrative Court's task. Such a step was in any
case necessary if Mr. Baraona wished to exhaust domestic remedies in
order to bring the issue of equality of arms before the Convention
institutions (see the Commission's decision of 5 October 1984 on the
admissibility of the application, Decisions and Reports no. 40).
This interlocutory appeal and the subsequent action to have the
Constitutional Court's decision set aside (see paragraph 26 in fine
above), although both justified, nevertheless complicated the
proceedings to some extent (see paragraph 50 above).
(c) Conduct of the relevant authorities
54. In the Commission's view, the main cause of delay lies in
State Counsel's five applications for an extension of time.
The Court notes that on 31 July 1981 the Administrative Court of
Lisbon issued a summons to State Counsel requesting him to reply
within twenty days, in accordance with Article 486 § 1 of the Code of
Civil Procedure (see paragraph 11 above). State Counsel did not in
fact file his pleadings until 18 November 1982, having secured several
extensions of time pursuant to Article 486 § 3 (see paragraph 32
above). On 11 February 1983, however, the Administrative Court
revoked the extension of time granted on 27 July 1982, because State
Counsel's application was too vague. It consequently decided to
exclude as having been filed out of time all pleadings submitted by
the parties after that date, including State Counsel's (see
paragraph 20 above). After a year and a half, therefore, the
proceedings were back where they had started.
The Administrative Court subsequently ordered the original of the
arrest warrant to be produced (see paragraph 21 above), but to no
effect. It did not give its preliminary decision until
30 December 1983, after awaiting production of the warrant for ten
months.
On 20 January 1984, Mr. Baraona lodged a complaint against this
decision. It was forwarded to the judge on 2 February, but he did not
dismiss it until two months afterwards, on 12 April, explaining that
he had been abroad (see paragraphs 22-23 above).
While the subsequent proceedings in the Supreme Administrative Court
and the Constitutional Court are not open to any criticism, the three
periods the Court has just indicated amount to more than two years,
and could be justified only by very exceptional circumstances (see
the Guincho judgment previously cited, Series A no. 81, p. 15, § 36).
55. In the Government's submission, the impugned applications for
extensions of time were legitimate in view of the complexity of the
case and were based on Portuguese legislation, so that the time which
elapsed on account of them could not be taken into consideration in a
review of the length of the proceedings.
56. The Court has already considered the complexity of the case
(see paragraph 50 above). As to the Government's other argument, the
Court finds it equally unconvincing. The fact that domestic
legislation allows State Counsel to seek an extension of time does not
exclude the State's responsibility for resultant delays; State Counsel
could have refrained from making such applications, or the
Administrative Court could have refused them - as it in fact did on
11 February 1983.
3. Conclusion
57. In short, neither the complexity of the case nor the
applicant's behaviour had any marked influence on the length of the
proceedings, which resulted mainly from the way in which the relevant
authorities conducted the case.
The "reasonable time" referred to in Article 6 § 1 (art. 6-1) of the
Convention has accordingly been exceeded.
II. APPLICATION OF ARTICLE 50 (art. 50)
58. Article 50 (art. 50) of the Convention provides:
"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."
A. Damage
59. Mr. Baraona claimed 8,000,000 Portuguese escudos in interest
for delay, at the rate of 23%, on the amount of the compensation
sought by him from the Government in the pending national proceedings
and on the basis of the five years these proceedings had already
lasted.
He also sought 5,000,000 escudos in respect of pecuniary and
non-pecuniary damage, claiming that the fact that the Portuguese
courts had not yet given a decision in his civil action had prevented
him from resettling in Portugal after having lost all his assets there
as a result of the arrest warrant complained of.
60. The Government pointed out that interest for delay could be
obtained in the domestic courts, which moreover took account of
inflation and currency erosion when determining the amount of
compensation. Furthermore, the length of the proceedings, they
claimed, had not caused the applicant any pecuniary damage, as he had
settled permanently in Brazil.
61. As regards interest for delay, the Court agrees with the
Commission: the Portuguese courts will have to award such interest
they if they find in favour of Mr. Baraona. At all events, the Court
cannot prejudge the outcome of the pending proceedings (see, among
other authorities, mutatis mutandis, the Bönisch judgment of
2 June 1986, Series A no. 103, p. 8, § 11).
As to the alleged pecuniary damage, it does not flow from the failure,
found in the present judgment, to hear the case within a "reasonable
time": the alleged impossibility of returning to Portugal stems from
the arrest warrant which caused the applicant to flee to Brazil and
leave all his property in Portugal. This, however, is precisely the
subject-matter of the action in the Administrative Court of Lisbon, on
whose outcome the Court cannot speculate.
On the other hand, the applicant has undeniably suffered non-pecuniary
detriment. After six years, he is still living in uncertainty as to
the outcome of the litigation in question and, accordingly, as to the
possibility of resettling in Portugal as he wishes. Assessing these
factors on an equitable basis as required by Article 50 (art. 50), the
Court awards him 500,000 escudos.
B. Costs and expenses
62. Mr. Baraona also claimed reimbursement of 1,000,000 escudos in
respect of costs and expenses incurred for his representation by two
lawyers before the Convention institutions, the sum being made up of
500,000 escudos for fees, 470,000 escudos for travel and subsistence
and 30,000 escudos for sundry expenses.
Relying on principles adopted in the matter by the Court in previous
cases (see, among many other authorities, the Bönisch judgment
previously cited, Series A no. 103, p. 9, § 15), the Government
considered that it was not necessary for two lawyers to be instructed.
63. The Government acknowledged that the case raised important
issues. In the Court's view, these could justify the attendance of
two lawyers at the hearing. The amount of the expenses occasioned by
their appearance in the proceedings before the Commission and the
Court and of the sundry expenses appears reasonable. On the other
hand, the Court finds that a sum of 400,000 escudos for fees is
sufficient in the circumstances of the case.
The applicant is thus entitled to be reimbursed a total of
900,000 escudos for costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Article 6 § 1 (art. 6-1) of the Convention is
applicable in the instant case;
2. Holds that there has been a breach of that Article (art. 6-1);
3. Holds that the respondent State is to pay the applicant
500,000 (five hundred thousand) escudos for non-pecuniary damage and
900,000 (nine hundred thousand) escudos for costs and expenses;
4. Rejects the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 8 July 1987.
Signed: Rolv RYSSDAL
President
For the Registrar
Signed: Jonathan L. SHARPE
Head of Division in the
registry of the Court