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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> SILVA PONTES v. PORTUGAL - 14940/89 [1994] ECHR 12 (23 March 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/12.html
Cite as: (1994) 18 EHRR 156, [1994] ECHR 12, 18 EHRR 156
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In the case of Silva Pontes 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 A. Spielmann,
Mr S.K. Martens,
Mrs E. Palm,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr J. Makarczyk,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 28 October 1993 and
22 February 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
* Note by the Registrar: The case is numbered 6/1993/401/479. 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
Portuguese Republic ("the Government") on 19 February and 5 April 1993
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. 14940/89) against Portugal lodged
with the Commission under Article 25 (art. 25) by a Portuguese
national, Mr Virgílio da Silva Pontes, on 16 January 1989.
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
Government's application referred to Article 48 (art. 48). The object
of the request and the application 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).
2. 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 lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio Mr M.A. Lopes
Rocha, 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 27 February 1993 Mr R. Bernhardt, the
Vice-President of the Court, drew by lot, in the presence of the
Registrar, the names of the other seven members, namely
Mr A. Spielmann, Mr S.K. Martens, Mrs E. Palm, Mr A.N. Loizou,
Mr J.M. Morenilla, Mr L. Wildhaber and Mr J. Makarczyk (Article 43
in fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government,
the applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant
to the order made in consequence, the Registrar received the
applicant's memorial on 3 May 1993 and the Government's memorial on
17 June. On 28 June the Secretary to the Commission informed the
Registrar that the Delegate would address the Court at the hearing.
On 22 July the applicant's lawyer lodged his client's claims under
Article 50 (art. 50) of the Convention.
On 7 July 1993 the President had granted Mr Silva Pontes legal
aid (Rule 4 of the Addendum to the Rules of Court).
5. On 15 September 1993 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
6. In accordance with the decision of the President - who had
given the applicant's lawyer leave to use the Portuguese language
(Rule 27 para. 3) -, the hearing took place in public in the Human
Rights Building, Strasbourg, on 25 October 1993. The Court had held
a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr A. Henriques Gaspar, Deputy Attorney-General
of the Republic, Agent,
Mr M.H. Mesquita, Professor at the
Law Faculty of Coimbra University, Counsel;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicant
Mr A. Amado Rodrigues, Counsel.
The Court heard addresses by the above-mentioned
representatives and also their answers to the questions of one judge.
AS TO THE FACTS
I. The particular circumstances of the case
7. Mr Virgílio da Silva Pontes, a Portuguese national born in
1917, was at the material time a bank employee. He lives in Évora.
8. On 12 November 1975 the car he was driving, in which
Mr José Gonçalves Martins Moreira was a passenger, was in collision
with another vehicle, belonging to Mr António dos Reis and driven by
Mr Francisco Techana.
As a result of his injuries Mr Silva Pontes remained in
hospital until 31 May 1976. He underwent several operations, including
one in London in December 1978. Since the accident he has one leg 5cm
shorter than the other and suffers from a 58% permanent disability,
which has made it impossible for him to return to work.
9. The Public Prosecutor's Department at the Évora Court of First
Instance was notified of the accident by the local police and
instituted criminal proceedings against both drivers for
unintentionally causing physical injury. The file on the case was
closed in 1976 following an amnesty under a legislative decree.
1. The declaratory proceedings
(a) In the Court of First Instance
10. On 20 December 1977 Mr Silva Pontes and Mr Martins Moreira
("the plaintiffs") brought a civil action in the Évora Court of First
Instance against Mr Techana, Mr dos Reis, the Gestetner company, on
whose behalf the journey was made, and the insurance company "Imperio",
whose liability was contractually limited to 200,000 escudos, ("the
defendants"). The applicant sought compensation of 536,345 escudos,
together with various amounts to be calculated during the enforcement
proceedings (liquidação em execução de sentença) in respect of future
expenses stemming from the accident.
Pursuant to Article 68 of the Road Traffic Code, the action
fell to be heard under a summary procedure, which entailed shorter
time-limits (Articles 783 to 792 of the Code of Civil Procedure and see
the Guincho v. Portugal judgment of 10 July 1984, Series A no. 81,
p. 8, para. 10).
11. On the conclusion of the preliminary proceedings and the
hearing (for a detailed description of the proceedings see the
Martins Moreira v. Portugal judgment of 26 October 1988, Series A
no. 143, pp. 8-13, paras. 11-29), the Évora Court of First Instance
gave judgment on 1 October 1982. It declared the action brought by
Mr Silva Pontes and Mr Martins Moreira well-founded in part and ordered
the defendants, jointly and severally, to pay the applicant
compensation of 540,000 escudos - 140,000 for pecuniary damage, taking
into account inflation, and 400,000 for non-pecuniary damage.
The court reserved for the subsequent enforcement proceedings,
in accordance with Article 661 para. 2 of the Code of Civil Procedure
(see paragraph 20 below), the question of the transport costs incurred
by the plaintiffs to enable them to receive treatment after the
accident.
(b) In the Évora Court of Appeal
12. On 13 October 1982 the applicant and Mr Martins Moreira
appealed from that judgment to the Évora Court of Appeal. They did not
dispute the facts as established by the first-instance court, but they
complained that the sums awarded were inadequate.
13. Their appeals and that of the Gestetner company were declared
admissible on 19 October 1982. On 30 May 1985 the Court of Appeal
dismissed Mr Silva Pontes's appeal, whereas it increased the sum
awarded to his co-plaintiff.
(c) In the Supreme Court
14. On 13 June 1985 the defendant company, Gestetner, appealed on
points of law to the Supreme Court (Supremo Tribunal de Justiça). The
plaintiffs lodged a "secondary" appeal ("recurso subordinado") with the
same court on 11 July.
15. The Supreme Court gave judgment on 5 February 1987. Taking
into account the permanent disability from which the plaintiffs
suffered after the accident, it found in their favour on this point and
awarded them additional compensation, to be determined in the
enforcement proceedings, for the damage flowing from their reduced
capacity to work and diminished ability to move, damage which it had
not been possible to assess at first instance. Its judgment was
notified to the applicant on 9 February.
2. The enforcement proceedings
16. On 28 October 1987, since the defendants refused to make a
payment of their own accord, the applicant and Mr Martins Moreira asked
the Évora court to enforce payment of the part of the damages that had
already been calculated, "without prejudice to the remainder once the
details necessary for its calculation have been established
(Article 810 of the Code of Civil Procedure)" ("sem prejuizo de logo
que recolhidos os necessários elementos, deduzirem liquidação da
restante (art° 810° do C.P. Civil)"). They listed the attachable
assets of the Gestetner company. However, a writ issued for service
in Lisbon ordering the attachment of the goods in question proved
impossible to execute; on 18 January 1988 the court found that the
company was subject to insolvency proceedings.
17. On 23 December 1988 the applicant indicated to the judge at the
Évora court the attachable assets of Mr dos Reis and asked him to make
a formal request to the Vila Franca de Xira court for the seizure of
assets situated within its jurisdiction.
On 4 January 1989 the same judge ordered the seizure of movable
goods and a building situated within the jurisdiction of the Évora
court; this took place on 8 March and 17 March 1989. He also made the
formal request to the Vila Franca de Xira court.
18. On 30 March 1989 Mrs dos Reis, whose marriage was subject to
the rules on community of property (comunhão geral de bens), requested
the judge, in accordance with Article 825 para. 3 of the Code of Civil
Procedure (see paragraph 20 below), to order the separation of her
assets from those of her husband. She further sought to have the
proceedings stayed until the couple's property had been divided up.
19. The process of dividing up the property continued until
19 December 1989, on which date the applicant and Mr Martins Moreira
concluded an out-of-court settlement with the defendants, pursuant to
which Mr dos Reis paid to them 8,500,000 escudos as full compensation.
II. The relevant domestic law
20. A translation of the main provisions of the Code of Civil
Procedure referred to in this case is set out below:
Article 2
(Correspondence between the right and the action)
"For each right, except as provided otherwise, there is a
corresponding action whose purpose is to secure judicial
recognition of the right in question or to enforce it,
accompanied by measures to ensure the effectiveness of the
action."
Article 4
(Classification of actions according to their purpose)
"1. There are two types of actions: declaratory actions
(declarativas) and enforcement actions (executivas).
2. Declaratory actions may have as their purpose (a) a mere
assessment, (b) an order or (c) the creation of a right
(constitutivas). They seek to obtain respectively:
(a) a mere declaration as to whether a right or fact
exists;
(b) an order, presupposing or aimed at preventing the
violation of a right, for the handing over of an article or
the accomplishment of an act;
(c) the authorisation for a modification of an existing
legal situation.
3. Enforcement actions are those by which the plaintiff
seeks adequate measures to secure effective reparation for the
right infringed."
Article 661
(Limits of the action for an order)
"1. ...
2. If insufficient information is available to determine the
nature or the amount [of the reparation], the court shall make
its order in respect of a sum to be fixed in subsequent
enforcement proceedings, without prejudice to its power to
make an immediate order in respect of the part of the award
already calculated."
Article 806
(Calculation by the court)
"1. Where the damages have not been calculated and their
calculation is not merely a matter of simple arithmetic, the
plaintiff must mention in his application instituting the
enforcement proceedings the sums which he considers to be
included in the damages owed and submit a final claim for a
specific amount.
2. ..."
Article 810
(Rules applicable where part of the damages
has been calculated and the rest not)
"1. If part of the damages awarded has not been calculated,
but the rest has, the order in respect of the calculated
damages shall be immediately enforceable.
2. Where the enforcement proceedings concern solely the part
of the award which has been calculated, the payment of the
remaining damages, if it is sought while the enforcement
proceedings are in progress, shall be requested by an
interlocutory application; where an appeal is lodged, a
certified copy of the enforcement decision must be attached
together with, if the enforcement is founded on a judgment,
the memorials and submissions of the parties."
Article 825
(Attachment of half the assets of a couple)
"1. ...
2. ... the common property may be attached immediately
provided that the creditor has included the goods in question
in the list of attachable assets and has asked that the
debtor's spouse be summoned so that he or she may, if they
wish, seek the division of the assets.
3. Within ten days of being summoned, the spouse must
request the division of the property or submit a certificate
proving that such division has already been requested in
connection with other proceedings pending, failing which the
attachment order shall be enforced in respect of the goods in
question.
4. Once that request has been made or the relevant
certificate lodged, enforcement shall be suspended until the
division of the property has been effected ..."
PROCEEDINGS BEFORE THE COMMISSION
21. The applicant lodged his application with the Commission on
16 January 1989. He complained of the length of the civil proceedings
which he had instituted on 20 December 1977 in the Évora Court of First
Instance, considering it to be contrary to Article 6 para. 1 (art. 6-1)
of the Convention.
22. The Commission declared the application (no. 14940/89)
admissible on 19 May 1992. In its report of 1 December 1992
(Article 31) (art. 31), it expressed the opinion, by eighteen 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 two 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 286-A of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
23. The Government requested the Court to hold:
"1. that the application to review the length of the
declaratory proceedings is inadmissible on the ground of the
applicant's failure to comply with the limitation period
prescribed in Article 26 (art. 26) of the Convention;
2. that the purpose of enforcement proceedings is not to
determine disputes as to civil rights and obligations within
the meaning of Article 6 para. 1 (art. 6-1) of the Convention;
3. that in any event, Article 6 para. 1 (art. 6-1) of the
Convention has not been violated in the present case".
24. The applicant asked the Court to hold:
"in accordance with the opinion of the Commission and the
judgment of the Court in the Martins Moreira case, the issues
and facts of which are the same as in this case ..., that
there has been violation of Article 6 para. 1 (art. 6-1) of
the Convention".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
25. The applicant maintained that the time taken to hear the civil
action brought by himself and Mr Martins Moreira in the Évora court had
exceeded a "reasonable time" within the meaning of 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 ..."
The Commission agreed with this view in substance, whereas the
Government contested it.
A. The Government's preliminary objection
26. As they had done before the Commission, the Government
contended that the application was out of time in so far as it
concerned the length of the declaratory proceedings. The judgment of
the Supreme Court of 5 February 1987 (see paragraph 15 above)
constituted the "final decision" for the purposes of Article 26
(art. 26) in fine of the Convention. The enforcement proceedings could
not be regarded as a second stage of the declaratory proceedings. On
the contrary, they were new and separate proceedings. Accordingly, the
six-month period laid down in Article 26 (art. 26) in fine had begun
to run as soon as the judgment in question had been delivered and the
applicant had failed to comply with that time-limit inasmuch as he had
lodged his application on 16 January 1989.
27. Mr Silva Pontes argued that his action for damages could not
reach a conclusion until he had secured payment through the enforcement
proceedings.
28. In its decision on admissibility, the Commission found that in
any event the application had been lodged less than six months after
the end of the enforcement proceedings and reserved for its examination
of the merits of the case the question whether the period to be taken
into consideration should include the declaratory proceedings.
29. It is not for the Court to express a view on the difference of
opinion among legal writers as to whether under Portuguese law
enforcement proceedings are autonomous. As the Delegate of the
Commission observed at the hearing, the moment at which there was a
"determination" of a civil right and therefore a final decision within
the meaning of Article 26 (art. 26) has to be ascertained with
reference to the Convention and not on the basis of national law.
30. If the national law of a State makes provision for proceedings
consisting of two stages - one when the court rules on the existence
of an obligation to pay and another when it fixes the amount owed - it
is reasonable to consider that, for the purposes of Article 6 para. 1
(art. 6-1), a civil right is not "determined" until the amount has been
decided. The determination of a right entails deciding not only on the
existence of that right, but also on its scope or the manner in which
it may be exercised (see, among other authorities, the Pudas v. Sweden
judgment of 27 October 1987, Series A no. 125-A, p. 14, para. 31),
which would evidently include the calculation of the amount due.
31. In the present case, at the stage of the declaratory
proceedings, the Évora court awarded Mr Silva Pontes damages of
540,000 escudos and, in accordance with Article 661 para. 2 of the Code
of Civil Procedure (see paragraph 20 above), reserved for the
subsequent enforcement proceedings the matter of the reimbursement of
the transport costs incurred in order to receive medical treatment
after the accident (see paragraph 11 above). The Évora Court of Appeal
dismissed the applicant's appeal (see paragraph 13 above), but the
Supreme Court awarded him an additional sum, likewise to be determined
in the course of the enforcement proceedings, for damage resulting from
his disability (see paragraph 15 above).
32. As the Government pointed out, when he instituted the
enforcement proceedings, Mr Silva Pontes requested the court to order
the payment of the part of the damages already calculated.
Nevertheless he added to his request a rider formulated as follows:
"without prejudice to the remainder once the details necessary for its
calculation have been established" (see paragraph 16 above).
33. The Court accordingly takes the view, like the Commission, that
the "enforcement" proceedings were not intended solely to enforce an
obligation to pay a fixed amount; they also served to determine
important elements of the debt itself, as is moreover shown by the size
of the out-of-court settlement on which the parties agreed (see
paragraph 19 above). Those proceedings must therefore be regarded as
the second stage of the proceedings which began on 20 December 1977
(see the Guincho v. Portugal judgment of 10 July 1984, Series A no. 81,
p. 13, para. 29, and the Martins Moreira v. Portugal judgment of
26 October 1988, Series A no. 143, p. 16, para. 44). It follows that
the dispute (contestation) over the applicant's right to damages would
only have been resolved by the final decision in the enforcement
proceedings.
34. As Mr Silva Pontes complained of the length of the proceedings
taken as a whole and not of a flaw affecting only the first stage, the
out-of-court settlement concluded on 19 December 1989 denotes the final
domestic decision. The preliminary objection must therefore be
dismissed.
B. The merits of the complaint
1. Applicability of Article 6 para. 1 (art. 6-1)
35. The Government did not dispute that the declaratory proceedings
concerned civil rights and obligations within the meaning of
Article 6 (art. 6), but contended that that provision did not apply to
the enforcement proceedings. Under Portuguese law the purpose of the
latter proceedings was not to settle a dispute over such rights and
obligations, since such proceedings presupposed the existence of a
right.
36. There can be no doubt that Article 6 (art. 6) applies to the
first stage of the proceedings and, having regard to its reasoning in
relation to the preliminary objection, the Court is of the view that
the same must be true of the second stage.
2. Compliance with Article 6 para. 1 (art. 6-1)
37. It remains to ascertain whether a "reasonable time" was
exceeded. The applicant and the Commission considered that it was;
they cited the grounds of the above-mentioned Martins Moreira judgment
(pp. 17-21, paras. 48-61). The Government confined their argument to
the enforcement proceedings and invoked procedural steps which proved
necessary and Mr Silva Pontes's conduct, which had been on occasions
negligent.
38. In the instant case the period to be taken into consideration
did not begin to run when the action was first brought before the
relevant court on 20 December 1977 (see paragraph 10 above), but only
on 9 November 1978, when the Convention entered into force with regard
to Portugal (see the Moreira de Azevedo v. Portugal judgment of
23 October 1990, Series A no. 189, p. 17, para. 70). It ended on
19 December 1989, the date on which the out-of-court settlement was
concluded (see paragraph 19 above and, mutatis mutandis, the
Martins Moreira judgment cited above, p. 16, para. 44). It therefore
lasted eleven years and one month.
39. The reasonableness of the length of proceedings is to be
determined in the light of the circumstances of the case and with
reference to the criteria laid down in the Court's case-law, in
particular the complexity of the case, the conduct of the applicant and
of the relevant authorities and what was at stake for the applicant in
the dispute (see, inter alia, the X v. France judgment of
31 March 1992, Series A no. 234-C, p. 90, para. 32). In connection
with the latter point, special diligence is called for in determining
compensation for the victims of road accidents; this is moreover
recognised by Portuguese law (see paragraph 10 above and the
Martins Moreira judgment, cited above, p. 17, para. 46).
40. As regards the declaratory proceedings, the Court notes the
similarity, acknowledged by the Government, between the applicant's
position and that of Mr Martins Moreira, his co-plaintiff in those
proceedings. In the present case, it sees no reason to depart from the
considerations set forth in its judgment of 26 October 1988 (pp. 17-19,
paras. 48-54). The length of the declaratory proceedings was
accordingly in itself already excessive.
41. The period subsequent to the decision of the Supreme Court of
5 February 1987 only made the proceedings even longer. Accordingly,
the Court does not consider it necessary to examine it in detail.
42. In conclusion, there has been a violation of Article 6
para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
43. Under 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."
The Delegate of the Commission considered that the Court should
award just satisfaction on the same basis and according to the same
principles as in the Martins Moreira case, but did not express a view
on the applicant's claims.
A. Damage
44. Mr Silva Pontes assessed the pecuniary damage at 2,000,000
escudos. The protracted character of the proceedings had prevented him
from securing in good time payment of the compensation awarded by the
court. In addition, the smallness of the sum paid by the Imperio
company - whose liability was limited to 200,000 escudos (see
paragraph 10 above and the above-mentioned Martins Moreira judgment,
p. 22, para. 63) - and the insolvency of the Gestetner company had
meant that at the time he had not been able to obtain the medical
treatment necessitated by his state of health. In order to meet the
costs of such treatment he had had to take out loans, at very high
rates of interest, and sell off personal possessions which he had
valued highly.
The applicant also claimed 4,000,000 escudos for non-pecuniary
damage. He had lived for a long time in a state of uncertainty and
anxiety as regards the outcome of the proceedings and this had had a
detrimental effect on his health.
45. In the Government's contention, the compensation that the
applicant had already received justified a different approach to that
adopted in the Martins Moreira case. In addition, there was no causal
connection between the delays complained of - complaints which were
manifestly baseless in the case of the enforcement proceedings - and
the pecuniary damage alleged.
The non-pecuniary damage related solely to the road accident
itself except in so far as it stemmed from doubts as to the outcome of
the proceedings.
46. The Court notes that the applicant's position was very similar
to that of Mr Martins Moreira. Like the latter, Mr Silva Pontes
suffered a loss of opportunity as a result of the long delay, in breach
of Article 6 (art. 6), found in the present judgment. The fact that
he accepted an out-of-court settlement is not decisive. This agreement
was concluded between the plaintiffs and the defendants (see paragraph
19 above), in other words between private persons, and it concerned the
consequences of the road accident and not those, for which the State
could be held responsible, flowing from the failure to comply with the
reasonable time requirement. Having regard to its approach in the
Martins Moreira judgment (pp. 22-23, paras. 65-67) and the other
relevant factors, and making an assessment on an equitable basis, the
Court awards the applicant 1,500,000 escudos for pecuniary and
non-pecuniary damage.
B. Costs and expenses
47. Mr Silva Pontes also sought 200,000 escudos by way of
reimbursement of the costs of the proceedings and the travel expenses
incurred in Portugal. With regard to the proceedings before the
Convention institutions, he requested the payment of his lawyer's fees
and his own travel and accommodation expenses for his trip to
Strasbourg, but gave no figures for these amounts.
The Government did not express a view.
48. Making an assessment on an equitable basis and in the light of
the criteria it applies in this field, the Court awards the applicant
200,000 escudos to cover all the costs and expenses claimed, in
addition to the 16,699.68 French francs paid by the Council of Europe
as legal aid.
FOR THESE REASONS, THE COURT
1. Dismisses unanimously the Government's preliminary objection;
2. Holds unanimously that Article 6 para. 1 (art. 6-1) is
applicable to this case;
3. Holds by eight votes to one that it has been violated;
4. Holds by eight votes to one that the respondent State is to
pay the applicant, within three months, 1,500,000 (one million
five hundred thousand) escudos for damage and 200,000 (two
hundred thousand) escudos for costs and expenses;
5. Dismisses unanimously 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 23 March 1994.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the dissenting
opinion of Mr Morenilla is annexed to this judgment.
Initialled: R. R.
Initialled: M.-A. E.
DISSENTING OPINION OF JUDGE MORENILLA
(Translation)
1. To my regret I must record my disagreement with the finding of
a violation of Article 6 para. 1 (art. 6-1) of the Convention in this
case and the reasoning on which that finding was based.
2. The majority reached the conclusion that there had been a
violation of Mr Silva Pontes's right to have his case heard within a
reasonable time by applying to the present case the Court's case-law
as laid down in the Guincho v. Portugal judgment of 10 July 1984
(Series A no. 81, p. 13, para. 29) and more specifically in the Martins
Moreira v. Portugal judgment of 26 October 1988 (Series A no. 143,
p. 16, para. 44). The similarity of the facts and the legal issues in
this case to those in the Martins Moreira case - noted by the majority
(paragraph 40 of the judgment) -, as a result of the fact that the two
cases concerned the same compensation proceedings in which the
applicants, as victims of the same road accident, were co-plaintiffs,
led the majority to make an identical finding of a violation of
Article 6 para. 1 (art. 6-1) of the Convention, on the basis of the
delays attributable to the Portuguese judicial authorities in the
proceedings brought by the applicant.
3. In my opinion, however, the present case, notwithstanding the
above-mentioned circumstances, is clearly distinguishable from the
earlier cases. Unlike Mr Martins Moreira and Mr Guincho, who had
applied to the Commission during the declaratory proceedings, Mr Silva
Pontes complained to the Commission two years after the decision of the
Portuguese Supreme Court which concluded the declaratory proceedings
and exhausted the domestic remedies. By virtue of Articles 26 and 27
(art. 26, art. 27) of the Convention, the applicant's complaint that
his case had not been heard within a reasonable time could therefore
only refer to the enforcement proceedings which were then pending and
which had been instituted eight months after the above-mentioned
decision of the Supreme Court.
4. However, the majority appears to disregard this fact, which
goes to the essence of the Convention system. Ultimately, like the
Court in the Martins Moreira judgment moreover, they take sides
- apparently despite themselves (see paragraph 29) - in a century-old
academic dispute as to whether declaratory proceedings and enforcement
proceedings relating to a civil action for damages are parts of one and
the same set of proceedings. The diversity of the legal systems in
Europe - and even the practice of the European Court when applying
Article 50 (art. 50) of the Convention - reveals the heterogeneity of
the approaches taken and shows that it is unrealistic to refer to the
Convention as if it were a monolithic system of precedent-based law.
I consider that this variety in the procedural solutions adopted, which
are, in my opinion, compatible with the Convention inasmuch as they
seek to achieve a more effective and less protracted system of justice,
precludes adopting inflexible positions, which may in addition lead to
dangerous simplifications in view of the great number of different
situations which may arise in the context of enforcement proceedings.
5. Furthermore, when Mr Silva Pontes instituted the enforcement
proceedings, he limited the scope of his action to the part of the
damages that had already been calculated in the final judgment. He did
so expressly (paragraph 16 of the judgment) as is shown by the rider,
likewise formulated in express terms, reserving the right to claim the
remainder "once the details necessary for its calculation have been
established" in accordance with Article 810 of the Portuguese Code of
Civil Procedure. I cannot therefore share the contrary view put
forward by the majority (paragraph 33 of the judgment). Accordingly
the question of the nature of the proceedings concerning the
determination - to be effected at the enforcement stage - of the
damages that had not been calculated, did not arise (paragraph 31 of
the judgment). In the present case the applicant's complaint before
the Commission, based on the excessive duration of the proceedings,
could only, as has been stated, refer to the enforcement proceedings
then pending and could not relate to the declaratory proceedings, which
had reached a final conclusion and in respect of which Mr Silva Pontes
had not previously - throughout the long proceedings and for two years
after the judgment - filed any complaint concerning their length. It
is my view that the Convention institutions' jurisdiction to examine
the length of declaratory proceedings, for the purposes of
Article 6 para. 1 (art. 6-1), cannot extend beyond the time-limit laid
down in Article 26 (art. 26) of the Convention solely because the
applicant decides to seek the enforcement of a final judgment where one
of the debts arising thereunder, having not been calculated, has been
left for the enforcement proceedings.
The majority's approach, which in fact "resuscitates" the
question of delays in the declaratory proceedings, is, I believe,
contrary to legal certainty and to the generally recognised principles
of international law (Article 26 (art. 26) of the Convention). As the
Commission stated (decision of 9 June 1958 in the De Becker case,
application no. 214/56, see G. Cohen-Jonathan, La Convention européenne
des Droits de l'Homme, Paris 1989, p. 132), referring to the travaux
préparatoires, "the two rules contained in Article 26 (art. 26)
concerning the exhaustion of domestic remedies and concerning the
six-month period are closely interrelated".
6. As regards the length of the enforcement proceedings in issue
(from 28 October 1987, when the applicant instituted them, until
19 December 1989, the date of the settlement concluded between the
applicant and Mr dos Reis), the facts of the case show (see
paragraphs 16-19) that the delays which occurred were not attributable
to the Portuguese judicial authorities, who displayed due diligence in
conducting the enforcement proceedings, which were of some complexity
as a result of the incidents which arose during them. The applicant
himself contributed to the delay by taking almost eleven months, from
29 January 1988 until 23 December 1988, to list the attachable goods
of Mr dos Reis, once the Lisbon court has established that it was
impossible to attach the assets of the Gestetner company. In addition,
the enforcement proceedings were stayed on 5 April 1989 following the
request for the separation of the assets of Mrs dos Reis until the
settlement was concluded. In the light of the criteria laid down by
the Court in this field, there has therefore been no violation of the
Convention in this case.