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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> MOREIRA DE AZEVEDO v. PORTUGAL (ARTICLE 50) - 11296/84 [1991] ECHR 41 (28 August 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/41.html
Cite as: (1992) 14 EHRR 113, 14 EHRR 113, [1991] ECHR 41
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In the case of Moreira de Azevedo v. Portugal*,
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,
Having deliberated in private on 27 August 1991,
Delivers the following judgment, which was adopted on that 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.
It originated in an application (no. 11296/84) against the
Republic of Portugal lodged with the Commission by
Mr Manuel Moreira de Azevedo, a Portuguese national, on
16 November 1984.
2. In a judgment of 23 October 1990 ("the principal
judgment", Series A no. 189) the Court found that there had been
a violation of Article 6 para. 1 (art. 6-1) of the Convention
because the "reasonable time" had been exceeded (pp. 18-19
and 20, paras. 71-75 of the reasons and point 2 of the operative
provisions). The only outstanding matter to be settled is the
question of the application of Article 50 (art. 50).
3. In his claims dated 11 May 1990 the applicant asked for
8,000,000 escudos in respect of pecuniary damage and
2,000,000 escudos for non-pecuniary damage. He also sought
reimbursement of costs and expenses referable to the European
proceedings, namely 500,000 escudos for lawyers' fees and
72,000 escudos for travel and subsistence expenses (ibid.,
pp. 19-20, paras. 77-78).
4. In the principal judgment the Court reserved the said
question, considering it not to be ready for decision; it invited
the Portuguese Government ("the Government") and the applicant
to submit to it in writing within three months their observations
on the matter, and in particular to communicate to it any
agreement reached between them (ibid., p. 20, para. 79 of the
reasons and point 3 of the operative provisions).
5. All attempts at reaching such an agreement having failed,
the Registrar received the observations and supplementary
observations of the Government and the applicant respectively on
various dates during the period from 21 January to 12 March 1991.
In a letter received on 15 April 1991, the Delegate of the
Commission referred to his statements, at the hearing of
23 May 1990, with reference to the applicant's claims.
On 29 April 1991 the Government produced various documents which
the Court had asked for.
6. The Court decided that in the circumstances there was no
need to hold a hearing.
AS TO THE FACTS
7. For the facts of the case the Court refers to the
principal judgment (pp. 8-11, paras. 11-50) and will merely bring
it up to date here.
8. On 21 March 1988 Mr Moreira de Azevedo brought an action
for damages in the Vila Nova de Famalicão Court of First Instance
against Mr Bernardo Gonçalves de Sousa, the defendant in the
criminal proceedings for assault whose duration, according to the
principal judgment, had exceeded the "reasonable time".
On 30 June 1988 the court held that the applicant's right to
compensation was statute-barred, and this decision (despacho
saneador) was upheld by the Oporto Court of Appeal (tribunal de
relação) on 6 July 1989.
9. Mr Moreira de Azevedo lodged an appeal (revista) and the
Supreme Court (Supremo Tribunal de Justiça) quashed the Court of
Appeal's decision on 24 January 1991, holding that the said right
was not statute-barred and ordering the case to be proceeded
with.
In a letter of 28 June 1991 the Government informed the Registrar
that this decision had not yet become final, as Mr Gonçalves de
Sousa had applied for a declaration of nullity (Article 732 of
the Code of Civil Procedure).
AS TO THE LAW
10. Under 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."
I. Damage
11. The applicant in the first place claimed
10,000,000 escudos as compensation, to wit, 8,000,000 escudos for
pecuniary damage and 2,000,000 escudos for non-pecuniary damage.
The Government accepted that he was entitled to monetary
compensation for non-pecuniary damage, but for nothing more, and
assessed this at 600,000 escudos. They expressed their regret
that Mr Moreira de Azevedo was claiming a sum considerably higher
than that (4,100,000 escudos) which he had asked for in the Vila
Nova de Famalicão Court.
At the hearing on 23 May 1990 the Delegate of the Commission said
that he was in favour of awarding a sum in respect of
non-pecuniary damage, but did not give any figure.
12. The Court observes that, pending the final decision of
the Supreme Court (see paragraph 9 above), it is still uncertain
whether Mr Moreira de Azevedo's right against Mr Gonçalves de
Sousa is statute-barred or not, and if not, what the amount of
his damages would be. Be that as it may, the excessive length
of the criminal proceedings must have caused the applicant
pecuniary damage, and definitely caused him non-pecuniary damage.
Taking its decision on an equitable basis as required by
Article 50 (art. 50), the Court awards him 4,000,000 escudos on
this count.
II. Costs and expenses
13. The applicant sought reimbursement of costs and expenses
relating to the European proceedings, namely 500,000 escudos for
lawyers' fees and 446,800 escudos for travel and subsistence
expenses and faxes.
The Government considered that all these items had already been
covered by the legal aid granted by the Commission and Court.
14. The Court does not regard the amounts claimed as
excessive, but the amount of FRF 20,153.90 paid as legal aid
should be deducted therefrom.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that the respondent State is to pay the applicant
within the next three months 4,000,000 (four million) escudos in
respect of damage and 946,800 (nine hundred and forty-six
thousand eight hundred) escudos for costs and expenses, less
FRF 20,153.90 (twenty thousand one hundred and fifty-three French
francs and ninety centimes);
2. Dismisses the remainder of the claim for just
satisfaction.
Done in French and in English, and notified in writing under
Rule 55 para. 2, second sub-paragraph, of the Rules of Court on
28 August 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar