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You are here: BAILII >> Databases >> European Court of Human Rights >> MOREIRA DE AZEVEDO v. PORTUGAL - 11296/84 [1990] ECHR 26 (23 October 1990)
URL: http://www.bailii.org/eu/cases/ECHR/1990/26.html
Cite as: 13 EHRR 721, [1990] ECHR 26, (1991) 13 EHRR 721
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In the Moreira de Azevedo 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:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr J. Pinheiro Farinha,
Mr A. Spielmann,
Mr J. De Meyer,
Mr S.K. Martens,
Mrs E. Palm,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 May and 26 September 1990,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 22/1989/182/240. 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.
** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 12 October 1989,
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. 11296/84) against the Republic of Portugal
lodged with the Commission under Article 25 (art. 25) by
Mr Manuel Moreira de Azevedo, a Portuguese national, on
16 November 1984.
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). The object of the request was to obtain a decision 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) of the Convention.
3. In response to the enquiry 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 and designated the lawyers
who would represent him (Rule 30).
4. The Chamber 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 para. 3 (b)). On 25 November 1989,
in the presence of the Registrar, the President drew by lot the
names of the other five members, namely Mr J. Cremona,
Mr A. Spielmann, Mr J. De Meyer, Mr S.K. Martens and Mrs E. Palm
(Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43).
5. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Portuguese Government ("the Government"), the Delegate of
the Commission and a representative of the applicant on the need
for a written procedure (Rule 37 para. 1). In accordance with the
order made in consequence on 9 January 1990, the Registrar received
the applicant's memorial on 12 March 1990 and that of the
Government on 16 March. On 27 March the Secretary to the
Commission informed the Registrar that the Delegate would submit
his observations at the hearing.
6. Having consulted, through the Registrar, those who would be
appearing before the Court, the President had directed on
16 January 1990 that the oral proceedings should open on
23 May 1990 (Rule 38). In addition he had given the applicant's
lawyers leave to plead in Portuguese (Rule 27 paras. 2 and 3).
7. On 2 March the Commission supplied the Registrar with
several documents which he had requested on the President's
instructions.
8. The applicant's claims under Article 50 (art. 50) of the
Convention reached the registry on 11 May.
9. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr I. Cabral Barreto, Deputy Principal
Public Prosecutor, Agent,
Mr A. Maduro, Judge at the Court of Auditors,
Mrs A. Miranda Rodrigues, Professor of Law at
the Catholic University of Oporto, Counsel;
(b) for the Commission
Mr A. Weitzel, Delegate;
(c) for the applicant
Mr J. Loureiro, advogado,
Mr M. Malvar, advogado, Counsel.
The Court heard addresses by Mr Cabral Barreto, Mr Maduro and
Mrs Miranda Rodrigues for the Government, by Mr Weitzel for the
Commission and by Mr Loureiro for the applicant, as well as their
replies to its questions and those of three of its members. On the
occasion of the hearing the representatives of the Government and
of the applicant produced various documents.
10. On 28 May the Registrar received from the Agent of the
Government a telex message concerning the application of Article 50
(art. 50).
AS TO THE FACTS
I. The circumstances of the case
11. Mr Manuel Moreira de Azevedo, who is a Portuguese national
and resides at Vila Nova de Famalicão, is a bus driver.
12. On 23 January 1977 one of his brothers-in-law,
Mr Bernardo Gonçalves de Sousa, shot him in the head following a
family quarrel. The applicant was rushed to the São João de Porto
hospital where he remained until 2 February 1977.
13. On the same day the police arrested the suspect and
communicated the facts to the Public Prosecutor, who requested the
investigating judge of the First-Instance Court of Vila Nova de
Famalicão to question him.
A. The investigation
1. The preliminary inquiry (inquérito preliminar
- 23 January 1977-21 May 1980)
14. Since there was insufficient evidence to establish the
offence of attempted murder, the investigating judge ordered,
on 24 January 1977, the provisional release of Mr Gonçalves de
Sousa, subject to the lodging of a security of 10,000 escudos. He
also decided to transmit the file to the Public Prosecutor for the
inquiry to be continued.
15. On 17 February a court medical officer examined the
applicant and asked that the medical report drawn up by the São
João de Porto hospital be communicated to him.
16. This report was supplied to him on 21 March and the Public
Prosecutor fixed the date of the medical examination for the 28th.
On that occasion the court medical officer noted that the injuries
resulting from the attack had led to Mr Moreira de Azevedo's being
unfit for work for a period of 90 days. On 28 April he expressed
the opinion that the applicant required another 30 days' sick
leave. On 26 May he pronounced the applicant to be recovered, but
prescribed other specialist examinations.
17. On 2 June 1977 the applicant stated that he wished to
intervene as an assistant (assistente) of the prosecuting authority
in the preliminary investigation. The investigating judge allowed
his application on 18 June 1977.
18. On 18 October and 7 November the applicant was examined by
an ear, nose and throat specialist and an opthalmologist.
19. On the recommendation of the opthalmologist he underwent a
neurological examination on 24 October 1978. This was followed on
11 June 1979 by an electroencephalogram and on 23 August by a
further medical examination ordered by the Public Prosecutor.
20. On 3 October 1979 the Public Prosecutor decided, at the
request of the court medical officer, to arrange for a further
neurological examination.
21. As the Oporto Medical Faculty informed him that the
applicant could not be examined until 1981, the Public Prosecutor
entrusted this task to the court medical officer, who was invited
to express an opinion in particular as to whether the assailant had
acted with "the intention of causing death".
22. In a report dated 8 May 1980, the medical officer concluded
that the applicant had recovered and that the period during which
he had been unfit for work was the period already established. He
also expressed the opinion that the assailant had indeed intended
to kill.
23. In the light of this report, the Public Prosecutor
communicated the file to the investigating judge on 21 May 1980,
requesting him to open the preliminary investigation.
2. Preliminary investigation (instrução preparatória
- 26 May 1980-5 July 1984)
24. On 26 May 1980 the investigating judge asked the Council of
Forensic Medicine (Conselho médico-legal) to examine the various
medical reports (Article 200 of the Code of Criminal Procedure),
but to no avail.
The file was transferred to the Criminal Investigation Court
(tribunal de instrução criminal) of Santo Tirso where it was
registered on 1 July 1982.
25. On 8 March 1982 the applicant wrote to the investigating
judge of Vila Nova de Famalicão seeking a further examination by
the court medical officer and criticising the length of the
proceedings.
26. On 6 July 1982 the judge of the Criminal Investigation
Court of Santo Tirso sought the opinion of the Public Prosecutor as
to whether an amnesty law was applicable.
27. In a letter of 13 October 1982, the applicant complained
that his letter of 8 March 1982 (see paragraph 25 above) had not
been added to the file; he repeated his request.
28. On 19 October 1982 the judge of the Criminal Investigation
Court of Santo Tirso, in his turn, instructed the Council of
Forensic Medicine to examine the medical reports and,
on 4 November, asked the court medical officer to clarify some
points in his report of 8 May 1980.
29. On 19 November 1982 the court medical officer recommended
a further neurological examination, which the judge ordered on
23 November.
30. In the meantime, by a letter of 13 November 1982 received
at the Criminal Investigation Court on 2 February 1983, the Council
of Forensic Medicine had asked the court medical officer to specify
the number of days during which the applicant had been unfit for
work and also to indicate the after-effects of the attack. On
23 February 1983 the medical officer described the injuries and
stated that the applicant had been unfit for work for 120 days and
still suffered from disability. He had lost a part of his skull
and was deaf in the left ear.
31. On 8 March 1983 Mr Moreira de Azevedo was examined by a
neurologist who sent his report to the judge on 5 July.
32. On 21 March 1984 the judge requested the court medical
officer to submit his report. He did so on 5 April 1984 and on the
same day the document was sent to the Council of Forensic Medicine.
33. On 26 April 1984 that body approved the findings of the
court medical officer's report, adding that the attack had resulted
in a disability and a total incapacity.
34. On 14 May 1984 the judge ordered that the applicant and the
accused be questioned on 24 May 1984. The applicant was questioned
on that date but the accused was unwell and did not appear.
35. On 25 May 1984 the applicant asked for five witnesses to be
heard.
36. On 28 May the judge decided that the accused should be
questioned on 7 June 1984. However, as the latter had absented
himself for an indefinite period, the bailiff was unable to serve
this order on him.
37. On 5 June 1984 Mr Moreira de Azevedo submitted a report by
the Public Health Department dated 15 April 1981 and drawn up
following a medical examination. According to this document he
suffered from a 64% incapacity.
38. On 6 June 1984 the judge issued a warrant for the accused's
arrest and, on 14 June, questioned the witnesses named by the
applicant.
39. On 1 July 1984 the police officer assigned to the case
informed the judge that Mr Gonçalves de Sousa had disappeared.
40. On 5 July 1984 the judge closed the preliminary
investigation and forwarded the file to the Public Prosecutor. On
10 July the latter requested the opening of adversarial
investigation proceedings and drew up the prosecution submissions
(acusação). He sought the accused's arrest, contending that
provisional release was not available to persons charged with
attempted murder.
3. The adversarial investigation proceedings (instrução
contraditória - 16 July 1984-27 July 1984)
41. On 16 July 1984 the judge declared the adversarial
investigation proceedings open and ordered the accused's arrest,
but the latter could still not be traced.
42. On 27 July the judge closed the investigation and forwarded
the file to the Public Prosecutor, who drew up the prosecution
submissions on 8 October 1984.
43. The accused was committed for trial on 16 November 1984 and
on 26 November 1984 was arrested and remanded in custody.
44. On 12 December 1984 the court scheduled the hearing for
5 February 1985.
45. On 21 December the applicant asked for evidence to be taken
from two witnesses.
B. The proceedings in the courts
1. The trial at first instance
46. On 5 February 1985, at the beginning of the hearing, the
applicant's lawyer submitted an oral request to the First-Instance
Court of Vila Nova de Famalicão that the fixing of the amount of
any compensation be deferred until the subsequent enforcement
proceedings ("liquidação em execução de sentença"), in accordance
with Article 34 para. 3 of the Code of Criminal Procedure.
47. On 18 February 1985 the court acquitted the accused on the
charge of attempted murder. However, it sentenced him to
14 months' imprisonment for causing grievous bodily harm and
ordered him to pay damages to the applicant in an amount to be
fixed in the enforcement proceedings.
48. The applicant and the accused filed appeals.
2. The judgment of the Court of Appeal of Oporto of 30 October 1985
49. On 30 October 1985 the Oporto Court of Appeal (tribunal de
relação) allowed Mr Gonçalves de Sousa's appeal. At the same time
it declared the criminal prosecution out of time
(five-year limitation period).
3. The judgment of the Supreme Court of 7 May 1986
50. Mr Moreira de Azevedo then appealed to the Supreme Court
(Supremo Tribunal de Justiça) which, on 7 May 1986, upheld the
appeal court's judgment. The letter of notification was sent to
the applicant on the following day. He was deemed to have received
it on the third day after its despatch (Article 1 para. 3 of
Legislative Decree No. 121/76).
II. The relevant domestic law
A. Criminal proceedings
51. In Portugal criminal proceedings are in principle brought
by the Public Prosecutor. According to Article 1 of Legislative
Decree No. 35007 of 13 October 1945 "criminal proceedings are the
responsibility of the authorities; they shall be brought by the
Public Prosecutor subject to the restrictions provided for in the
following Articles". These restrictions relate to the cases in
which the police or administrative authorities or other State
organs may bring criminal proceedings, but they apply in general
only for petty offences. Legislative Decree No. 605/75
of 3 November 1975 also states, in Article 1 thereof, that "except
as provided for by law, criminal proceedings shall be conducted by
the Public Prosecutor who shall open the preliminary inquiry or
communicate the file to the investigating judge, as the case may
be".
52. In certain cases, private persons may participate in the
criminal proceedings as assistentes. Article 4 of Legislative
Decree No. 35007 provides as follows:
"The following may participate in proceedings as assistentes:
1° Those persons without whose accusation or complaint the Public
Prosecutor cannot bring a prosecution;
2° The victims, namely those whose interests the criminal law
sought especially to protect by prohibiting the offence;
3° The husband in trials concerning offences of which his wife
has been the victim, unless she objects thereto;
4° The spouse, where there is no judicial separation or
separation of property, or the surviving spouse or any ascendant,
descendant, brother or sister, in cases where the victim is
deceased or incapable of managing his or her own affairs;
5° Any person in trials concerning embezzlement, bribery,
misappropriation of public funds or corruption.
Para. 1° - The assistentes perform the function of assistants to
the Public Prosecutor; their role in the proceedings is subordinate
to that of the Public Prosecutor, except in cases provided for by
the law.
Para. 2° - However, the assistentes are entitled in particular:
1° to make prosecution submissions independently of those filed by
the Public Prosecutor;
2° to intervene directly in the adversarial investigation
proceedings by adducing evidence and requesting the judge to take
the appropriate measures;
3° to appeal against the order committing the accused for trial,
the judgment or the order terminating the proceedings, even if the
Public Prosecutor has not done so.
Para. 3° - ... (repealed)
Para. 4° - In cases where the assistentes make prosecution
submissions relating to facts different from those which are the
subject of the prosecution submissions filed by the Public
Prosecutor, they may not appeal against the decision of the court
if it accepts the Public Prosecutor's submissions.
Para. 5° - The assistentes may intervene at any moment in the
proceedings up to five days before the trial hearing and shall
accept the state of the proceedings as they stand at that stage."
The preamble to the Decree states as follows:
"3. Criminal proceedings shall be brought by the Public Prosecutor
in his capacity as a State authority. The right to punish an
offender is a right that belongs exclusively to the State and
consequently private individuals may, in accordance with the law,
assist in bringing a prosecution, but have no personal right to
bring one ... ."
Article 70 of the Code of Criminal Procedure provides that the
preliminary investigation is to be secret. However, according to
paragraph 1 thereof the accused and the assistente may have access
to certain documents in the file provided that this does not impede
the discovery of the truth.
B. The victim's right to compensation
53. The Code of Criminal Procedure applicable at the material
time - new provisions came into force with effect from
1 January 1988 - contained several provisions on the victim's right
to compensation:
Article 29
"A claim for damages resulting from a punishable offence for which
the perpetrators are liable must be brought in the criminal
proceedings in process and may be brought in separate proceedings
in the civil courts only in the cases provided for by this Code".
Article 30
"Except in the cases in which criminal proceedings may be brought
only on the basis of a complaint or an accusation by a private
party, civil proceedings may be instituted separately in the civil
courts where the prosecution has not been brought by the Public
Prosecutor within six months of the complaint being laid or where
no action has been taken on the complaint for the same period,
where the proceedings have been discontinued or where the accused
has been acquitted.
Para. 1° In cases in which criminal proceedings may be brought
only on the basis of a complaint or an accusation by a private
party, the victim may bring civil proceedings, but if he does so,
the criminal proceedings shall lapse.
Para. 2° Where criminal proceedings have been instituted, civil
proceedings may be brought separately only where no action has been
taken in the criminal proceedings for six months or more through no
fault of the assistente where the proceedings have been
discontinued or where the accused has been acquitted."
Article 32
"The claim for damages may be lodged in criminal proceedings even
by a person who has not intervened as an assistente.
Para. 1° The Public Prosecutor shall seek damages on behalf of
the State, where appropriate, and on behalf of bodies serving
public interests or the legally incapacitated to whom compensation
is payable, if they are not represented by a lawyer in the
proceedings.
Para. 2° The statement of claim for damages shall be set out in
articles.
Para. 3° The evidence relating to the award of damages shall be
adduced within the time-limits applying for the criminal
proceedings ..."
Article 34
"If the accused is convicted, the court shall decide the amount to
be paid to the victims in respect of damages, even where no claim
has been lodged.
Para. 1° In cases where the law accords civil compensation to
other persons the amount shall be determined for each party.
Para. 2° The amount of compensation shall be determined at the
discretion of the court which shall take into account the
seriousness of the offence, the pecuniary and non-pecuniary damage
and the financial and social position of the injured party and of
the offender.
Para. 3° The persons entitled to compensation may request, before
judgment is pronounced at first instance, that the amounts of
compensation be decided in enforcement proceedings. In such
circumstances assessment and enforcement shall take place in the
civil courts, the criminal judgment serving as the basis for
enforcement.
Para. 4° If, in the cases provided for by law, the civil action
for damages is pending or has been judged in the civil courts,
compensation shall not be determined in the criminal proceedings."
Article 12 of Legislative Decree No. 605/75, cited above, states
moreover as follows:
"In cases where the accused is acquitted, the court shall order the
accused to pay damages in respect of proven unlawful acts or
liability based on risk, if established.
In such cases Article 34 of the Code of Criminal Procedure shall
apply, adapted as necessary."
54. In a "ruling" judgment (assento) of 28 January 1976 the
Supreme Court held that the civil courts had no competence to award
compensation if compensation had already been awarded in the
criminal proceedings (Diário da República, Series 1,
11 March 1976).
Although this decision concerned civil and criminal damages for
road traffic infringements, it set out the following general
considerations:
"Article 29 [of the Code of Criminal Procedure] establishes the
principle of the interrelation ... between the criminal and the
civil proceedings but with greater emphasis on the priority of the
criminal proceedings over the civil proceedings ...
...
... The formulation of prosecution submissions in the criminal
proceedings, which are intended to secure the conviction of the
accused, can therefore be seen as implying a request for
compensation to be awarded to the victim, because according to the
law such compensation is a consequence of a conviction.
...
... the amount of compensation is determined by the criminal
judgment regardless of whether the victim has filed a civil claim
... ."
PROCEEDINGS BEFORE THE COMMISSION
55. In his application (no. 11296/84) lodged with the
Commission on 16 November 1984 Mr Moreira de Azevedo complained of
the length of the proceedings relating to the prosecution brought
by the Public Prosecutor on 24 January 1977 in the Vila Nova de
Famalicão First-Instance Court; he considered their duration to be
contrary to Article 6 para. 1 (art. 6-1) of the Convention.
56. The Commission declared the application admissible on
15 April 1988. In its report of 10 July 1989 (Article 31) (art.
31), it expressed the opinion by eight votes to six that there had
been no violation of Article 6 para. 1 (art. 6-1).
The full text of its opinion and of the separate opinions 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 189 of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
THE GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
57. In their memorial of 16 March 1990 the Government invited
the Court "to hold that Article 6 para. 1 (art. 6-1) of the
Convention does not apply to the proceedings in question".
AS TO THE LAW
58. According to Mr Moreira de Azevedo, the duration of the
criminal proceedings instituted against his assailant in the Vila
Nova de Famalicão First-Instance Court exceeded the reasonable time
referred to in Article 6 para. 1 (art. 6-1), according to which:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by
[a] ... tribunal ... ."
59. The Government contended primarily that the application was
inadmissible on the ground of a failure to exhaust domestic
remedies. In the alternative, they argued that Article 6 para. 1
(art. 6-1) was not applicable.
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
60. Before the Commission the Government had lodged a
preliminary objection divided into four limbs, but before the Court
they repeated, and set out the grounds for, only one of them.
Having regard to Rule 48 para. 1 of the Rules of the Court, the
other three do not call for a decision as the Court may not examine
them of its own motion (see, inter alia, the Duinhof and Duijf
judgment of 22 May 1984, Series A no. 79, p. 14, para. 30).
61. The submission re-iterated in the memorial of March 1990
and at the hearing of 23 May is to the effect that the applicant
ought to have brought civil proceedings, pursuant to Article 30 of
the Code of Criminal Procedure (see paragraph 53 above), separately
from the criminal proceedings.
Such proceedings would however have dealt with the substantive
issue in dispute before the Portuguese courts, Mr Moreira de
Azevedo's right to compensation, and not the only complaint relied
upon by him in Strasbourg, namely the failure to complete the
proceedings within a "reasonable time". Article 26 (art. 26) of
the Convention requires remedies to be exercised only in so far as
they relate to the violations complained of before the organs whose
task it is to ensure the observance of the Convention (see, among
many other authorities, the Ciulla judgment of 22 February 1989,
Series A no. 148, p. 15, para. 31). In addition, it would be
pointless to speculate as to whether such proceedings would have
led to a decision being given more rapidly, because in any event
they constituted a remedy too indirect to be taken into
consideration (see, mutatis mutandis, the Deweer judgment
of 27 February 1980, Series A no. 35, pp. 17 and 18, paras. 29 in
fine and 31).
The objection must therefore be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
62. Before making any ruling on the alleged violation of
Article 6 para. 1 (art. 6-1), the Court has to decide whether that
provision is applicable.
A. Applicability of Article 6 para. 1 (art. 6-1)
63. According to the Government, there is no sign in the
contested proceedings of any "contestation" (dispute) concerning
the applicant's "civil rights and obligations". Mr Moreira de
Azevedo had never claimed compensation for the damage sustained
inasmuch as the status of assistente was not equivalent to the
submission of such a claim. Only an express application lodged at
the same time as the indictment, or within the time-limit in which
the indictment could be drawn up, would have constituted objective
evidence of an intention to claim compensation.
64. Mr Moreira de Azevedo argued, on the other hand, and he
referred to the case-law of the Supreme Court (see paragraph 54
above), that a statement expressing a wish to intervene as
assistente in itself incorporated an implied claim for financial
reparation. In support of this view he cited his request that the
decision as to the amount of damages be deferred until the
subsequent enforcement proceedings (see paragraph 46 above).
65. The Commission took the view that the applicant had never
asserted his civil rights by filing a formal claim for compensation
in the criminal proceedings, as was required under Article 32 of
the Code of Criminal Procedure. It considered that the guarantees
secured under Article 6 para. 1 (art. 6-1) of the Convention did
not apply to situations in which, following a conviction, the court
awarded a sum of money, of its own motion; it therefore concluded
that Article 6 para. 1 (art. 6-1) was not applicable.
66. In the Court's opinion, the right to a fair trial holds so
prominent a place in a democratic society that there can be no
justification for interpreting Article 6 para. 1 (art. 6-1) of the
Convention restrictively.
Conformity with the spirit of the Convention requires that the word
"contestation" should not be construed too technically and that it
should be given a substantive rather than a formal meaning.
Besides, it has no counterpart in the English text of Article 6
para. 1 (art. 6-1) ("in the determination of his civil rights and
obligations"; cf. Article 49 (art. 49): "dispute" - see, mutatis
mutandis, the Le Compte, Van Leuven and De Meyere judgment
of 23 June 1981, Series A no. 43, p. 20, para. 45).
In so far as the French word "contestation" would appear to require
the existence of a dispute, if indeed it does so at all, the facts
of the case show that there was one.
In any event, the case concerned the determination of a right; the
result of the proceedings was decisive for that right (see the
above-mentioned judgment, p. 21, para. 46).
67. The impact on civil proceedings of the status of
assistente, which attached to the applicant during the criminal
proceedings, is the subject of controversy among Portuguese legal
writers. Clearly the applicant could have used the right made
available to him under Article 32 of the Code of Criminal Procedure
to submit a formal claim for damages, but the Court cannot
disregard the principles laid down by the Supreme Court in its
"ruling" judgment (assento) of 28 January 1976 (see paragraph 54
above). In the light of these principles it appears that to
intervene as an assistente is equivalent to filing a claim for
compensation in civil proceedings.
By acquiring this status, Mr Moreira de Azevedo demonstrated the
importance which he attached not only to the criminal conviction of
the accused but also to securing financial reparation for the
damage sustained. Moreover, his application that the decision as
to quantum be deferred until the subsequent enforcement proceedings
(see paragraph 46 above) confirms that he genuinely expected to be
paid damages.
68. In conclusion, Article 6 para. 1 (art. 6-1) applies to this
case.
B. Compliance with Article 6 para. 1 (art. 6-1)
1. Period to be taken into consideration
69. According to the applicant, the proceedings lasted nine
years. The Government maintained that they had begun on
24 January 1977 with the decision of the investigating judge
ordering the provisional release of Mr Gonçalves de Sousa and were
concluded on 7 May 1986 when the Supreme Court adopted its
judgment.
70. The Court notes that the incident in question took place on
23 January 1977 and that the accused was arrested and interviewed
on the same date. However, the period to be considered did not
begin to run at that date, but on 9 November 1978, when the
Convention entered into force with regard to Portugal (see the
Neves e Silva judgment of 27 April 1989, Series A no. 153, p. 15,
para. 40). In order to determine the reasonableness of the time
which elapsed after that date it is, however, necessary to take
into account the stage which the proceedings had reached at that
point.
The relevant period ended on 11 May 1986, the third day following
the despatch of the letter of notification to the applicant
(Article 1 para. 3 of Legislative Decree no. 121/76 of
11 February 1976).
2. Reasonableness of the length of the proceedings
71. 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 conduct of
the applicant and that of the relevant authorities (see, inter
alia, the H. v. France judgment of 24 October 1989, Series A
no. 162, p. 21, para. 50).
72. It is common ground between the participants in the
proceedings before the Court that the dispute was not a complex
one; however, their views differ with regard to the conduct of the
applicant and that of the judicial authorities.
According to the Government, Mr Moreira de Azevedo did not take the
steps necessary to expedite the proceedings and displayed a
passivity which reflected acceptance of their length. This the
applicant disputed.
The Court observes that the investigation conducted between
23 January 1977 and 5 July 1984 was secret and that the applicant
did not have free access to the file (see paragraph 52 above).
In any event the applicant was under no duty to take the steps
referred to by the Government; moreover, they would not have
shortened the proceedings (see, mutatis mutandis, the Guincho
judgment of 10 July 1984, Series A no. 81, p. 15, para. 34).
73. It remains to examine the conduct of the relevant
Portuguese courts.
The applicant ascribed the length of the proceedings to the
defective functioning of the system of justice. In his view, the
respondent State was alone responsible for this situation and could
not hide behind the delays of the hospital authorities.
For their part, the Government stressed that no major problems
arose in the course of the preliminary inquiry, apart from the time
taken for the medical examinations. Although they conceded that
there were certain delays in the investigation and that it made no
progress whatsoever from 26 May 1980 until 5 July 1982, they argued
that the investigation authorities were at the time experiencing a
difficult period of re-organisation, but that prompt and adequate
measures had been decided in 1982 (amendment of the Constitution)
and 1987 (adoption of a new Code of Criminal Procedure). Finally,
they maintained that the responsibility for the lack of efficiency
of the departments of the Oporto medical faculty could not be
attributed to the judicial authorities.
In the opinion of the Commission's Delegate, there could be no
doubt that the "reasonable time" had been exceeded. The
proceedings had scarcely progressed from 26 May 1980 to
5 July 1982, and the time taken to complete the medical
examinations of the applicant was excessive.
The Court shares this view and notes that the State is responsible
for all its authorities and not merely its judicial organs (see,
among other authorities, the Martins Moreira judgment of
26 October 1988, Series A no. 143, p. 21, para. 60).
74. By requiring that cases be heard "within a reasonable
time", the Convention stresses the importance of administering
justice without delays which might jeopardise its effectiveness and
credibility (see, inter alia, the H. v. France judgment, cited
above, pp. 22-23, para. 58).
The Court is not unaware of the difficulties which sometimes delay
the hearing of cases by national courts and which are due to a
variety of factors. It is mindful of the reforms carried out by
the Portuguese State as regards the organisation of the
investigation authorities. Nevertheless it finds that the
Government have failed to show what practical and effective
measures Portuguese law provided in the present case to accelerate
the progress of the criminal proceedings.
75. In conclusion the "reasonable time" was exceeded and there
was accordingly a violation of Article 6 para. 1 (art. 6-1).
III. APPLICATION OF ARTICLE 50 (art. 50)
76. According to Article 50 (art. 50) of the Convention,
"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."
Mr Moreira de Azevedo sought both the award of compensation and the
reimbursement of costs and expenses.
77. The applicant claimed 8,000,000 escudos in respect of
pecuniary damage and 2,000,000 for non-pecuniary damage. He had,
he alleged, been prevented from pursuing his occupation and no
longer received his salary as a bus driver, which had been
60,000 escudos. Furthermore, the slowness of the Portuguese courts
meant that he had been unable to obtain compensation from
Mr Gonçalves de Sousa. He was physically and mentally destroyed
and his incapacity to work was at least 75%. He suffered from
permanent after-effects due to the loss of a part of his skull and
to "subjective damage to the encephalic mass".
For his part, the Commission's Delegate took the view that if the
Court found a breach of Article 6 para. 1 (art. 6-1), the applicant
would be entitled to compensation for the non-pecuniary damage
flowing from the protracted uncertainty and anxiety concerning the
outcome of the proceedings. He expressed no view on the pecuniary
damage.
78. While taking into account the fact that he had received
legal aid before the Convention organs, Mr Moreira de Azevedo
claimed the reimbursement of costs and expenses referable to the
European proceedings. He assessed the lawyers' fees at
500,000 escudos and travel and subsistence expenses at
72,000 escudos.
The Commission's Delegate considered that, if a violation were
found, the applicant would be entitled to the reimbursement of
expenses actually and necessarily incurred by him to prevent the
breach, or have it redressed, both in the domestic legal system and
at the European level. However, he did not give any figures as to
quantum.
79. The Government have not taken any stand on the matter and
the Court does not yet have at its disposal certain information
which it requires to make an assessment, and in particular
appropriate supporting documents. The question is thus not ready
for decision. Accordingly, it should be reserved and the
subsequent procedure fixed, taking into account the possibility of
an agreement between the respondent State and the applicant
(Rule 54 paras. 1 and 4 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that Article 6 para. 1 (art. 6-1) applied to the
present case and that it was violated;
3. Holds that the question of the application of Article 50
(art. 50) is not ready for decision;
Accordingly
(a) reserves it in whole;
(b) invites the Government and the applicant to submit to it in
writing within the next three months their observations on the
question and in particular to communicate to it any agreement which
they may reach;
(c) reserves the subsequent procedure and delegates to the
President of the Court power to fix the same if need be.
Done in English and in French and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 23 October 1990.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar