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You are here: BAILII >> Databases >> European Court of Human Rights >> UNIÓN ALIMENTARIA SANDERS S.A. v. SPAIN - 11681/85 [1989] ECHR 16 (7 July 1989)
URL: http://www.bailii.org/eu/cases/ECHR/1989/16.html
Cite as: [1989] ECHR 16, (1990) 12 EHRR 24
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In the case of Unión Alimentaria Sanders SA*,
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 J. Cremona,
Mr Thór Vilhjálmsson,
Mr F. Matscher,
Mr R. Macdonald,
Mr J. De Meyer,
Mr J.A. Carrillo Salcedo,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 22 April and 19 June 1989,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
* Note by the Registrar. The case is numbered 16/1988/160/216.
The first number is the case's position on the list of cases
referred to the Court in the relevant year (second number). The
last two numbers indicate the case's position on the list of cases
referred to the Court since its creation and on the list of the
corresponding originating applications to the Commission.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") and by the Government
of the Kingdom of Spain ("the Government") on 19 December 1988 and
20 January 1989 respectively, within the three-month period laid
down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of
the Convention. It originated in an application (no. 11681/85)
against Spain lodged with the Commission under Article 25 (art. 25)
by a Spanish private company, Unión Alimentaria Sanders SA,
on 5 July 1985.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Spain recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46); the
Government's application referred to Article 48 (art. 48).
The object of the request and of the application 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 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, the applicant company stated
that it wished to take part in the proceedings pending before the
Court and designated the lawyer who would represent it (Rule 30).
3. The Chamber to be constituted included ex officio
Mr J.A. Carrillo Salcedo, the elected judge of Spanish nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 26 January 1989,
in the presence of the Registrar, the President drew by lot the
names of the other five members, namely Mr J. Cremona,
Mr Thór Vilhjálmsson, Mr F. Matscher, Mr R. Macdonald and
Mr J. De Meyer (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, having on each occasion consulted - through
the Registrar - the Agent of the Government, the Delegate of the
Commission and the lawyer for the applicant company:
(a) decided on 10 February 1989 that there was no need at that
stage for memorials to be filed (Rule 37 para. 1); and
(b) directed on 14 March that the oral proceedings should open on
21 April 1989 (Rule 38).
5. On various dates between 2 March and 21 April 1989, the
Registrar received a number of documents that the President had
instructed him to obtain from the Government, the Commission or the
applicant company, as the case might be.
6. The hearing took place 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:
(a) for the Government
Mr J.L. Fuertes Suárez, Adviser, Ministry
of Justice, Agent,
Mr J.M. Morenilla Rodríguez, Adviser, Ministry
of Justice, Counsel;
(b) for the Commission
Mr J.-C. Soyer, Delegate;
(c) for the applicant
Mr F. Ramos Méndez, abogado, Counsel.
The Court heard addresses by Mr Fuertes Suárez for the Government,
by Mr Soyer for the Commission and by Mr Ramos Méndez for the
applicant company, as well as their replies to its questions.
7. The applicant company filed its claims under Article 50
(art. 50) of the Convention on 11 May 1989, and the observations on
them by the Agent of the Government reached the registry on 22 May.
On 23 May, the Delegate of the Commission made it known that he did
not intend to file any observations.
AS TO THE FACTS
I. The circumstances of the case
A. Background
8. Unión Alimentaria Sanders is a limited company in the food
industry and has its registered office in Madrid.
9. In 1974, it concluded a contract whereby it would finance
the rearing of pigs belonging to it on a farm owned by another
company, Linconin SA. In return, Linconin SA was to pay the price
of the animals and the administrative costs. Owing to its
insolvency, however, it was unable to honour its commitments; and
in the meantime it had sold the pigs.
Criminal proceedings were brought against Linconin SA and its
directors but were subsequently discontinued following a general
amnesty.
B. The proceedings in the Barcelona Court of First Instance
10. On 2 May 1979, Unión Alimentaria Sanders SA brought an
action in the Barcelona Court of First Instance (juzgado de primera
instancia) for payment of the sum it considered was owed to it by
Linconin SA and one of its directors, Mrs P. Since it thought the
company and Mrs P. to be insolvent, it also brought two actions
based on the principle of subrogation against them and three other
persons, for the enforcement of contracts for the purchase of land
and a farm by the first two defendants and the registration of the
purchase in the land register.
11. The case was assigned to the Barcelona Court of First
Instance no. 9, which summoned the defendants to appear before it.
Only one of these, Mrs B., appeared, however; the others could not
be found. Mrs B. raised preliminary objections and submitted
observations on the merits.
On 27 November 1980, the court requested the parties to produce
their evidence, and this they did from 17 December 1980 to
26 March 1981. Once that was done, it asked them to make their
submissions, since they were not seeking a hearing. The applicant
company did so on 29 October, and Mrs B. on 12 November.
12. In an order (providencia) of 28 December 1981, the court
declared the case ready for decision (declaró los autos conclusos
para sentencia). By Article 678 of the Code of Civil Procedure,
judgment had to be given within twelve days, or within fifteen days
if the file contained more than a thousand items.
13. On 10 July 1983, Unión Alimentaria Sanders SA wrote to the
court to complain of a breach of Article 24 para. 2 of the
Constitution, which guarantees "the right to a public trial without
undue delay (sin dilaciones indebidas) and with all safeguards".
On 21 October 1983, the company applied to the Constitutional Court
for a declaration that there had been undue delay in the
proceedings in question, an order requiring the trial court to give
judgment and a declaration that the applicant company was entitled
to compensation for the damage ensuing from the delay. The
Constitutional Court dismissed the appeal (recurso de amparo)
on 23 January 1985 (see paragraphs 17-19 below).
14. On 17 December 1983, the Court of First Instance no. 9
found partly in favour of the applicant company. It ordered
Linconin SA and Mrs P. jointly and severally to pay the plaintiff
the sum of 1,852,343.67 pesetas with statutory interest, and two of
the defendants who were sued on the principle of subrogation to
perform the contract for the sale of certain land and have it
entered in the land register. On the other hand, the court
dismissed the applicant company's claims against Mrs B.
In one of the recitals of fact, it acknowledged the delay in giving
judgment but gave no reason for it.
C. The proceedings in the Barcelona Court of Appeal
15. On 23 December 1983, Unión Alimentaria Sanders SA appealed
against the judgment. The file was sent to the Barcelona Court of
Appeal (Audiencia Territorial) on 25 April 1984, and in May the
case was allocated to the First Civil Chamber of that court.
On 5 June, the applicant company stated that it was ready for the
trial; on 10 July, the Court of Appeal held that the defendants had
forfeited their right to submit written observations as they had
not appeared.
On 13 September 1984, after the file had been studied by the
reporting judge, the court declared the case to be ready for trial,
without however setting any date for the hearing.
16. A third civil chamber had been established in the meantime,
and the case was transferred to it on 27 September 1985, pursuant
to a decision of 4 September. On 17 March 1986, it appointed a new
reporting judge and set the case down for trial on 6 May.
On 12 May 1986, the Third Civil Chamber partly allowed the
applicant company's appeal and ordered Mrs B. to repay Linconin SA
a specified sum paid for the purchase of the land; it upheld the
remainder of the judgment of the court below. The appeal court's
judgment was notified to the applicant company by the Court of
First Instance on 13 September.
D. The proceedings in the Constitutional Court
17. During the proceedings in the Court of Appeal, the
Constitutional Court was considering the application brought by
Unión Alimentaria Sanders SA on 21 October 1983 (see paragraph 13
above).
It declared the application admissible on 30 November and
subsequently received observations from Crown Counsel (ministerio
fiscal), the applicant company and counsel representing the
Government (Abogado del Estado).
Crown Counsel recognised that there had been undue delay, which was
not explained by the Court of First Instance, but considered that
once the normal course of the trial had been resumed and judgment
given, the constitutional appeal no longer had any purpose except
to obtain compensation. Counsel for the Government submitted that
the case had become devoid of purpose.
18. In its judgment of 23 January 1985 dismissing the appeal,
the Constitutional Court first rejected these submissions by Crown
Counsel and counsel for the Government and then concluded as
follows on the merits:
"... Having reviewed the criteria relating to the complexity of the
case and to the conduct of the judicial authorities and the
parties, the Court must examine the consequences of the trial for
the rights and interests at stake. This is one of the factors to
be considered, as has often been pointed out by the European Court
of Human Rights (Buchholz judgment). In its claim for
compensation, the appellant company has given no indication of any
consequences of the delay other than the precautionary entry which,
in order to cover itself against the outcome of the trial, it had
made [in the land register] against security at the time of the
civil proceedings, so as to provide for possible compensation of
the defendants if they should succeed at trial. Nothing was said
about the practical consequences of the length of the trial for the
rights and interests of the plaintiff. The latter confined itself
in its submissions to noting the aforementioned effect of the
precautionary step provided for in section 42 of the Mortgages Act
and 'non-pecuniary damage', about which it remained vague. It thus
appears that the time factor was not of primary importance in the
instant case. Seeing that only court costs and the amount of the
security were involved, it does not seem that this case before the
Barcelona court merited any priority. If other, more urgent cases
were pending, nothing precluded giving them priority and
provisionally postponing the decision which is the subject of the
present appeal.
Consideration must also be given to what is regarded as the norm in
respect of a court's level of activity and output in the light of
the number of cases to be dealt with. This was the factor to which
counsel for the Government referred when he set out the position
not only of the court which had to deal with the case under appeal
but also of the other Barcelona courts dealing with ordinary - and
other - cases within their jurisdiction. He stressed the temporary
backlog of cases and saw that as one of the reasons for the length
of the trial in issue. This Court must consider that factor, just
as the European Court of Human Rights has done, which has given
judgment, under Article 6 para. 1 (art. 6-1) of the Convention, on
delays found to have occurred in different types of trial. The
Buchholz judgment may be cited as an example.
The length of an ordinary trial of a case which is complex and much
disputed but does not merit any priority must be assessed on the
basis of all these factors and in the light of the total time taken
up by the trial. Inasmuch as the right to a trial without undue
delay is not the same thing as strict compliance with court
deadlines and does not necessarily mean that there is no abnormal
situation, the delays during the civil proceedings in issue are not
sufficient to warrant the conclusion that there has been a breach
of Article 24 para. 2 of the Constitution ..." (Boletín de
Jurisprudencia Constitucional no. 46, February 1985, p. 152).
19. One of the judges, however, dissented:
"...
In the absence of any justification duly advanced by the trial
court, we must ascertain whether or not the dilatoriness of which
it is accused amounts to 'delay' within the meaning of Article 24.
Even accepting the relevance of the criteria adopted in the
judgment of this Court, the signatory of this separate opinion does
not approve the manner in which they have been applied. The action
was brought on 2 May 1979 and judgment given on 17 December 1983.
A total duration of more than four and a half years is in principle
excessive if we take into account ... the 'total time taken up by
the trial' and particularly if we remember that the trial court did
not indicate to us any special feature of the case justifying such
dilatoriness. In the absence of any detailed justification, it is
likewise not possible ... to consider 'what is regarded as the norm
in respect of a court's level of activity and output'. Since
normality is what corresponds to the norm and not what departs from
it, even if the norm is more often honoured in the breach than in
the observance, the traditional slowness of the system of justice
cannot be regarded as 'normal'. Furthermore, if the length of
trials were to continue to grow longer, if the failure to comply
with the norms of 'output of the system of justice' were to become
widespread and if such 'abnormal', but commonplace, circumstances
always had to be taken as a basis for assessing whether or not the
right to a trial without undue delay had been respected, the
protection of this fundamental right would by that very fact be
reduced to nought ..." (ibid., p. 154).
E. The application for enforcement of the Court of Appeal's
judgment
20. On 18 October 1986, Unión Alimentaria Sanders SA applied to
the Barcelona Court of First Instance no. 9 for enforcement of the
Court of Appeal's judgment and seizure of the defendants' assets,
which it listed. That application is still pending.
II. The position of the Barcelona courts
21. In its report for 1982 the General Judicial Council noted
that each of the Barcelona courts of first instance had had to deal
with an average of 1,800 cases.
The same courts continued to lack judges for periods that recurred
more and more often, despite the use of substitutes for urgent
matters. This was the case with Court of First Instance no. 9: the
judge had to be replaced on several occasions in 1982/83 for health
reasons. He retired on 27 July 1983 and his successor was not
installed until 21 September 1983. Two months later, however, the
new appointee left the post, which again remained vacant. Until
22 February 1984, when the new incumbent took up his duties, the
judge of the Barcelona Court of First Instance no. 1, acting as a
substitute, dealt with the cases assigned to Court no. 9, and he it
was who gave the judgment in the instant case (see paragraph 14
above).
22. Similar difficulties prevailed in the Barcelona Court of
Appeal, to the point that the Ombudsman (Defensor del Pueblo)
devoted a chapter of his report for 1985 to them. He stressed the
large number of complaints about the length of proceedings in the
Court of Appeal's civil chambers and mentioned the inquiry into
them which had been instituted (Boletín oficial de las Cortes
Generales, 15 September 1986, p. 125).
Between 1981 and 1984 the volume of cases to be dealt with by the
two chambers had increased by 62%. Two new judgeships were created
in 1983; but as this measure proved inadequate, a new chamber was
established in 1985 and cases pending before the other two chambers
were transferred to it - 964 from the First Chamber and 586 from
the Second Chamber. The parties had to be informed, new reporting
judges appointed and a new timetable prepared in order to deal with
the backlog of cases, priority being given to the most urgent.
23. In June 1985, the Council (Junta de Gobierno) of the
Barcelona Bar launched a campaign to secure an improvement in the
system of justice in the city with a manifesto which by
January 1986 had already been signed by a thousand lawyers.
24. More generally, in his reports for 1983 and 1984 the
Ombudsman drew the attention of the Chamber of Deputies (Congreso
de Diputados) to the frequency of complaints about the law's delays
and the difficulty of obtaining enforcement of judgments. In the
following year he described the situation as alarming. In his
view, the main reasons for it were the shortage of staff and the
continual changing of judges.
25. The Spanish State indeed took several relevant steps at
national level. An institutional Act of 10 January 1980, for
example, established the General Judicial Council, and the
Judicature Act of 1 July 1985 reorganised the system. Between the
two, a royal decree of 3 July 1981 set up four new courts of first
instance in Barcelona, which have been in operation since
September 1981; and an Act of 21 May 1982 established new judicial
districts there.
Lastly, an Act of 28 December 1988 completely reorganised the
administration of justice. Between 1989 and 1992 the number of
judges is planned to rise from 2,000 to 3,570. In Barcelona
10 additional courts are to be set up by converting district courts
(tribunales de distrito) into courts of first instance, which will
increase the number of the latter to 44 by 1992; and the Barcelona
Provincial Court should have 64 judges.
PROCEEDINGS BEFORE THE COMMISSION
26. In its application of 5 July 1985 to the Commission
(no. 11681/85), Unión Alimentaria Sanders SA complained of the
length of the civil proceedings it had instituted in the Barcelona
Court of First Instance no. 9, arguing that it was contrary to
Article 6 para. 1 (art. 6-1) of the Convention.
27. The Commission declared the application admissible on
11 December 1987. In its report of 13 October 1988 (Article 31)
(art. 31), the Commission expressed the opinion by thirteen votes
to one that there had been a violation of Article 6 para. 1
(art. 6-1). The full text of the Commission's opinion and of the
dissenting opinion contained in the report is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar. For practical reasons this annex will
appear only with the printed version of the judgment (volume 157 of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
28. The applicant company complained of the length of time
taken to hear the civil action it had brought in a Barcelona Court
of First instance on 2 May 1979. It relied on 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 ..."
In the Commission's view, the case had not been heard within a
"reasonable time". The Government disagreed.
A. Period to be taken into consideration
29. The period to be considered began on 1 July 1981, when
Spain's declaration accepting the right of individual petition took
effect. However, in order to determine the reasonableness of the
period which elapsed after then, regard must be had to the stage
which the proceedings had reached at that juncture (see, as the
most recent authority, the Milasi judgment of 25 June 1987,
Series A no. 119, p. 45, para. 14).
30. As regards the end of the material period, the Court finds
that two phases must be distinguished. The first of these lasted
until 13 September 1986, when the Barcelona Court of Appeal's
judgment was notified to the parties; the second consisted of the
enforcement proceedings. The latter proceedings, which depended
entirely on the initiative of the applicant company, began on
18 October 1986 and have still not been concluded. The Court will
concentrate on the first phase, which lasted five years, two months
and thirteen days.
B. Applicable criteria
31. The reasonableness of the length of proceedings must be
assessed in the light of the particular circumstances of the case
and having regard, in particular, to its complexity and the conduct
of the applicant and the competent authorities.
1. Complexity of the case
32. The Government submitted that the case was fairly complex.
There were several defendants, against whom different claims were
being made, and the claims based on the principle of subrogation
raised delicate legal problems. In addition, the file amounted to
some 1,400 pages.
33. Like the Commission, the Court considers on the contrary
that the case did not present special difficulties with regard to
the facts or the law. It would add that only one of the defendants
appeared before the Court of First Instance and none of them before
the Court of Appeal (see paragraphs 11 and 15 above) - which
simplified the task of those courts.
2. Conduct of the applicant company
34. The Government pointed out that it was a principle of
Spanish law that responsibility for the progress of proceedings
rested with the parties. Not until 21 October 1983 did the
applicant company lodge an appeal with the Constitutional Court
complaining of the length of the proceedings at first instance,
although the case had been declared ready for decision as far back
as 28 December 1981 (see paragraphs 12-13 above). Furthermore, it
never complained to that court about the appeal proceedings. It
had thus, the Government argued, been instrumental in prolonging
the proceedings as a whole.
35. The Court reiterates that such a principle does not absolve
the courts from ensuring compliance with the requirements of
Article 6 (art. 6) concerning reasonable time (see, inter alia, the
Martins Moreira judgment of 26 October 1988, Series A no. 143,
p. 17, para. 46). Like the Commission, the Court considers that
the person concerned is required only to show diligence in carrying
out the procedural steps relating to him, to refrain from using
delaying tactics and to avail himself of the scope afforded by
domestic law for shortening the proceedings. He is under no duty
to take action which is not apt for that purpose (see the Guincho
judgment of 10 July 1984, Series A no. 81, p. 15, para. 34).
In the instant case it appears from the evidence that the applicant
company showed diligence and that on 10 July 1983 it complained to
the relevant court (see paragraph 13 above). This was the only
ordinary procedure available to it under Spanish legislation. The
recurso de amparo of 21 October 1983 was brought mainly in order to
obtain a finding that there had been a violation of the
Constitution, and it was dismissed on 23 January 1985 (see
paragraph 13 above). That being so, even if in this case it
indirectly helped to expedite the proceedings, it cannot on that
account be regarded as an ordinary procedure for achieving that
end. As far as the appeal proceedings are concerned, it is
understandable that Unión Alimentaria Sanders SA did not lodge a
second constitutional appeal seeing that its first one had failed.
3. Conduct of the competent authorities
36. The Commission and the applicant company were critical in
particular of two long periods during which the relevant judicial
authorities remained inactive.
The Court notes that after declaring on 28 December 1981 that the
case was ready for decision, the Barcelona Court of First Instance
no. 9 waited until 17 December 1983 before giving judgment (see
paragraphs 12 and 14 above). On appeal the First Chamber declared
the case ready for hearing on 13 September 1984 but the hearing
before the Third Chamber did not take place until 6 May 1986
(see paragraphs 15-16 above).
These two periods of almost total inactivity amounted to more than
three and a half years. Such delay can be justified only by very
exceptional circumstances (see the Guincho judgment previously
cited, Series A no. 81, p. 15, para. 36).
37. The Government acknowledged that there had been a backlog
at the relevant time, but they pointed out that the Barcelona
courts had then had an unusually heavy workload owing to the
increase in the number of cases. This increase had followed on
Spain's return to democracy and was due to the establishment of new
judicial safeguard systems, an overhaul of legislation and a
tendency to have greater recourse to the courts. Faced with this
state of affairs, the relevant courts - including the
Constitutional Court - had considered that the present case was not
urgent and did not qualify for priority treatment.
The Spanish State had, moreover, taken the necessary steps to
remedy the situation. These measures had affected, among other
places, Barcelona, where new courts and judicial districts had been
created, together with an additional chamber in the Court of
Appeal; furthermore, the Act of 28 December 1988 had completely
reorganised the administration of justice at national level in
order to make it better adapted to the needs of the modern world
(see paragraphs 22 and 25 above).
38. The Court is aware that Spain had to overcome serious
difficulties during the restoration of democracy. It duly
appreciates the efforts made by the Spanish authorities to improve
public access to the courts and to overhaul the country's judicial
system. It reiterates, however, that in ratifying the Convention,
Spain undertook to organise its judicial system in such a way as to
ensure that it satisfied the requirements of Article 6 para. 1
(art. 6-1), including that of trial within a "reasonable time"
(see the Guincho judgment previously cited, Series A no. 81, p. 16,
para. 38).
39. The present case concerns the courts in Barcelona, in
particular Court of First Instance no. 9 and the First Chamber of
the Court of Appeal.
Before he retired (on 27 July 1983), the judge of Court no. 9 had
to be replaced several times for health reasons. His successor
relinquished his post barely two months after 21 September 1983,
when he had taken up his duties. The new incumbent took over on
22 February 1984; until then the judge of Court of First Instance
no. 1 also had to deal with the cases before Court no. 9, including
the case of Unión Alimentaria Sanders SA (see paragraph 21 above).
This situation coincided with a marked increase in the number of
cases.
Matters were the same in the Barcelona Court of Appeal, whose
case-load almost doubled within the space of five years. As the
creation of two new judgeships in 1983 was not sufficient to absorb
the backlog, it proved necessary to set up a new chamber in 1985,
to which the applicant company's case was transferred (see
paragraph 22 above).
40. A temporary backlog of court business does not entail a
Contracting State's international liability if the State takes
appropriate remedial action with the requisite promptness (see,
among other authorities, the Guincho judgment previously cited,
Series A no. 81, p. 17, para. 40). In such circumstances it is
legitimate as a temporary expedient to decide on a particular order
in which cases will be dealt with, based on their urgency and
importance. The urgency of a case, however, increases with time;
consequently, if the critical situation persists, such expedients
are shown to be insufficient and the State must take other, more
effective action to comply with the requirements of Article 6
para. 1 (art. 6-1) (see, among other authorities, the Zimmermann
and Steiner judgment of 13 July 1983, Series A no. 66, pp. 12-13,
para. 29). The fact that such backlog situations have become
commonplace does not, in the Court's view, justify excessive length
of proceedings (see, mutatis mutandis, the Martins Moreira judgment
previously cited, Series A no. 143, p. 19, para. 54).
41. In the instant case, the two periods of delay noted by the
Court - two years and more than one and a half years - are very
substantial, and the courts concerned did not point to any special
feature of the case which could have explained such dilatoriness
(see paragraph 19 above).
The increase in the Barcelona courts' workload was foreseeable, not
only because of the measures taken following the adoption of the
1978 Constitution to facilitate access to the courts but also
because of a trend, long since observed, towards a high level of
migration to Catalonia in general and Barcelona in particular.
Lastly, the Ombudsman and the Barcelona Bar Council had already
reported the seriousness of the problem (see paragraphs 22-24
above).
This state of affairs continued for several years, thus becoming
organisationally in-built. The measures taken in 1981 and 1982 in
respect of the courts of first instance (see paragraph 25 above)
and in 1983 and 1985 in respect of the Court of Appeal (see
paragraph 22 above) proved, even at the time, insufficient and
belated. They slightly reduced the length of the proceedings in
the Court of Appeal but, as the Commission pointed out, had no
effect on the specific situation in the Barcelona Court of First
Instance no. 9.
42. In the light of all the circumstances of the case, the
Court considers the length of the impugned proceedings excessive.
The undeniable difficulties encountered in Spain could not deprive
the applicant company of its right to have its case heard within a
"reasonable time".
There was therefore a breach of Article 6 para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
43. By Article 50 (art. 50),
"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. Pecuniary damage
44. The applicant company claimed compensation for pecuniary
damage allegedly consisting in (a) the depreciation of the amount
involved in the litigation as a result of inflation
(3,019,319 pesetas) and (b) the bank's commission on the
precautionary entry in the land register (63,510 pesetas - see
paragraph 18 above). It left the matter to the Court's discretion,
however.
The Government contested the former amount on the ground that the
domestic courts could order payment of interest; and as to the
latter amount, said that the period after June 1986 should not be
taken into account.
45. The Court is of the opinion that Unión Alimentaria Sanders
SA has suffered pecuniary damage, which is not however susceptible
of precise quantification. Assessing such damage on an equitable
basis, as required by Article 50 (art. 50), the Court awards the
company 1,500,000 pesetas.
B. Legal fees and expenses
46. In respect of the hearings before the Commission and the
Court, the applicant company also claimed reimbursement of (a)
lawyer's fees (1 peseta); and (b) the cost of two return air
tickets from Barcelona to Strasbourg (190,170 pesetas) and
subsistence expenses in Strasbourg (30,000 pesetas).
The Government agreed.
47. The Court considers that these amounts should be allowed,
that is to say a total of 220,171 pesetas.
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 Unión Alimentaria
Sanders SA 1,500,000 (one million five hundred thousand) pesetas in
respect of pecuniary damage and 220,171 (two hundred and twenty
thousand one hundred and seventy-one) pesetas in respect of costs
and expenses;
3. Dismisses 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 7 July 1989.
Signed: Rolv RYSSDAL
President
Signed: For the Registrar
Herbert PETZOLD
Deputy Registrar