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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> LOBO MACHADO v. PORTUGAL - 15764/89 [1996] ECHR 6 (20 February 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/6.html
Cite as: (1996) 23 EHRR 79, 23 EHRR 79, [1996] ECHR 6, [1996] 23 EHRR 79, (1997) 23 EHRR 79
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In the case of Lobo Machado v. Portugal (1),
The European Court of Human Rights, sitting, in
accordance with Rule 51 of Rules of Court A (2), as a Grand
Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr R. Macdonald,
Mr A. Spielmann,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr F. Bigi,
Sir John Freeland,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr J. Makarczyk,
Mr D. Gotchev,
Mr K. Jungwiert,
Mr P. Kuris,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 1 September 1995 and
22 January 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 21/1994/468/549. 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.
2. Rules A apply to all cases referred to the Court before the
entry into force of Protocol No. 9 (P9) (1 October 1994) and
thereafter only to cases concerning States not bound by that
Protocol (P9). They correspond to the Rules that came into force
on 1 January 1983, as amended several times subsequently.
_______________
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
7 July and 5 September 1994, within the three-month period laid
down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47)
of the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention"). It originated in an
application (no. 15764/89) against Portugal lodged with the
Commission under Article 25 (art. 25) by a Portuguese national,
Mr Pedro Lobo Machado, on 2 November 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 of 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 (art. 6) of the Convention and Article 1 of
Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, 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 18 July 1994,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr N. Valticos,
Mr S.K. Martens, Mrs E. Palm, Mr I. Foighel, Mr F. Bigi,
Mr J. Makarczyk and Mr K. Jungwiert (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43). Subsequently
Mr A. Spielmann, substitute judge, replaced Mr Valticos, who was
unable to take part in the further consideration of the case
(Rules 22 para. 1 and 24 para. 1).
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 18 November 1994
and the Government's memorial on 21 November. On 1 December the
Secretary to the Commission informed the Registrar that the
Delegate would submit his observations at the hearing.
5. On 2 February 1995 the President decided in the interests
of the proper administration of justice that the instant case and
the case of Vermeulen v. Belgium (58/1994/505/587) should be
heard on the same day. Consequently, after consulting the
Chamber, he decided to adjourn the hearing in the instant case
from 20 March 1995, the date originally scheduled, to 30 August.
6. On 22 March 1995, under Rule 37 para. 2, the President
decided to grant a request from the Belgian Government to submit
written observations on certain aspects of the case. In a letter
received at the registry on 18 April 1995 counsel for the
applicant made comments on questions concerning the scope of the
aforementioned Government's intervention as an amicus curiae.
On 24 May 1995 the Registrar received the observations.
7. Likewise on 24 May 1995 the Chamber relinquished
jurisdiction in favour of a Grand Chamber (Rule 51). In
accordance with Rule 51 para. 2 (a) and (b), the President and
the Vice-President (Mr Ryssdal and Mr R. Bernhardt), together
with the other members of the original Chamber, became members
of the Grand Chamber. On 8 June 1995, in the presence of the
Registrar, the President drew by lot the names of the additional
judges, namely Mr R. Macdonald, Mr R. Pekkanen, Mr A.N. Loizou,
Mr J.M. Morenilla, Sir John Freeland, Mr L. Wildhaber, Mr D.
Gotchev, Mr P. Kuris and Mr U. Lohmus.
8. In accordance with the decision of the President, who had
given the applicant's lawyer leave to address the Court in
Portuguese (Rule 27 para. 3), the hearing took place in public
in the Human Rights Building, Strasbourg, on 30 August 1995. The
Court had held a preparatory meeting beforehand.
9. There appeared before the Court:
(a) for the Government
Mr A. Henriques Gaspar, Deputy Attorney-General
of the Republic, Agent,
Mr O. Castelo Paulo, former President of the Employment
Division of the Supreme Court, Adviser;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicant
Mr J. Pires de Lima, advogado, Counsel,
Mr J.M. Lebre de Freitas, Professor of Law
at the University of Lisbon, advogado,
Mr M. Nobre de Gusmão, advogado, Advisers.
The Court heard addresses by Mr Danelius, Mr Pires de
Lima, Mr Lebre de Freitas, Mr Henriques Gaspar and Mr Castelo
Paulo.
AS TO THE FACTS
I. Circumstances of the case
10. Mr Pedro Lobo Machado is a Portuguese national who lives
in Lisbon. In 1955 he joined the Sacor company as an engineer.
Following its nationalisation in 1975, Sacor was absorbed into
Petrogal-Petróleos de Portugal, EP ("Petrogal"), a State-owned
concern. On 4 April 1989 Petrogal became a public limited
company, in which the State is still the majority shareholder.
In the meantime, on 1 January 1980, the applicant had retired.
11. On 5 February 1986 Mr Lobo Machado brought proceedings
against Petrogal in the Lisbon industrial tribunal; the company
was represented by a lawyer appointed by the chairman of its
board of directors. Mr Lobo Machado sought recognition of the
occupational grade of "director-general" instead of that of
"director" which had been assigned to him by his employer. As
that classification had an effect on the amount of his retirement
pension, he also sought payment of the sums that, under the
collective labour agreement (acordo colectivo de trabalho),
should have been paid him since 1980.
12. The Lisbon industrial tribunal dismissed his claims in a
judgment of 7 October 1987. That decision was upheld by the
Lisbon Court of Appeal in a judgment of 1 June 1988.
13. The applicant appealed to the Supreme Court (Supremo
Tribunal de Justiça).
14. After the parties had exchanged pleadings, the case file
was sent to the representative of the Attorney-General's
department at the Supreme Court, a Deputy Attorney-General, on
20 February 1989. On 28 February 1989 that representative
delivered an opinion in which he recommended that the appeal
should be dismissed, as follows:
"1. Seen.
2. The appellant reiterates the arguments already
presented to the Court of Appeal and seeks to have that
court's judgment and the one of the court of first
instance set aside and to have his action allowed. Those
arguments, however, were duly considered in the judgment
appealed against, which is sufficient in itself as
regards the reasons given for it. No further
consideration is therefore necessary.
3. I am consequently of the opinion that the appeal must
be dismissed."
15. On 19 May 1989 the Supreme Court, sitting in private,
considered the appeal. Three judges, a registrar and the member
of the Attorney-General's department were present at the
deliberations. The parties had not been asked to attend. At the
end of the deliberations the court adopted a judgment in which
it dismissed the appeal and this was served on the applicant on
22 May 1989.
II. Relevant domestic law
A. The Constitution
16. The independence and status of the Attorney-General's
department are similar to those of the judiciary. In Article 221
paras. 1 and 2 of the Constitution its functions are laid down
as follows:
"1. The duties of the Attorney-General's department are
to represent the State, to act as prosecuting authority
and to uphold the democratic legal order and the
interests determined by law.
2. The Attorney-General's department shall have its own
status and shall be autonomous, in accordance with law."
B. The Institutional Law governing the Attorney-General's
department
17. Law no. 47/86 of 15 October 1986 defines the scope of the
powers of the Attorney-General's department and lays down the
manner in which it is to intervene - as plaintiff or defendant
or else in an "associated" (acessória) capacity - in judicial
proceedings. The following provisions are relevant to the
instant case:
Section 1
"By law, the Attorney-General's department is the body
responsible for representing the State, acting as
prosecuting authority and upholding the democratic legal
order and the interests assigned to it by law."
Section 3 (1)
"It shall be the duty of the Attorney-General's
department in particular to:
(a) represent the State ...;
(b) act as prosecuting authority;
(c) represent workers and their families in defence of
their social rights;
(d) uphold the independence of the courts, within the
limits of its responsibilities, and ensure that the
judicial function is discharged in accordance with the
Constitution and statute law;
(e) further the execution of court decisions in respect
of which it is so empowered;
(f) direct criminal investigations, even where they are
carried out by other bodies;
(g) promote and cooperate in campaigns for the prevention
of crime;
(h) monitor the constitutionality of legislation;
(i) intervene in bankruptcy and insolvency proceedings
and in any other proceedings of public interest;
(j) act in an advisory capacity, as provided in this Law;
(l) supervise police proceedings;
(m) lodge appeals against decisions resulting from
collusion between the parties with the intention of
evading the law or which have been given in breach of an
express statutory provision; and
(n) discharge all the other functions assigned to it by
statute."
Section 5
"1. The Attorney-General's department shall intervene in
proceedings as plaintiff or defendant:
(a) where it represents the State;
...
(d) where it represents workers and their families in
defence of their social rights;
...
4. The Attorney-General's department shall intervene in
proceedings in an `associated' capacity:
(a) where none of the cases provided for in
subsection (1) applies and where the parties concerned in
the case are autonomous regions, local authorities, other
public entities, charities and other institutions
promoting the public interest, persons lacking legal
capacity or missing persons; and
(b) in all other cases provided for by law."
Section 6
"1. Where the Attorney-General's department intervenes in
an `associated' capacity, it shall watch over the
interests entrusted to it by taking all necessary
measures.
2. The intervention shall be made in the manner laid
down in procedural law."
Section 11 (2)
"[The Attorney-General's department] shall be represented
[in the supreme courts] by Deputy Attorneys-General ..."
Section 59
"The Minister of Justice may:
(a) give specific instructions to the Attorney-General
concerning civil cases in which the State has an
interest;
(b) authorise the Attorney-General's department ... to
admit the other side's case, conclude settlements or
discontinue proceedings in civil cases to which the State
is a party;
..."
C. The Code of Civil Procedure
18. The relevant provisions of the Code of Civil Procedure,
which are also applicable to cases falling within the
jurisdiction of the industrial tribunals, are the following:
Article 20
"1. The State shall be represented by
the Attorney-General's department.
2. If the case concerns State property or State rights
but the property is managed or the rights exercised by
autonomous bodies, the latter may instruct counsel, who
shall act conjointly with the Attorney-General's
department in the proceedings. In the event of
disagreement between the Attorney-General's department
and counsel, the view of the Attorney-General's
department shall prevail."
Article 709
"1. After inspecting the case file, each judge shall
append his signature and the date, together with any
comments. At the end of this process, the registry shall
enter the case in the court's list.
2. On the day on which the court sits to adopt its
judgment, the reporting judge shall read out the draft
judgment, after which each of the other judges shall vote
in the order in which they have inspected the case file.
Where possible, a photocopy or a manuscript or typescript
copy of the draft judgment shall be distributed to the
presiding judge and the other judges of the court at the
beginning of the sitting.
3. ..."
Article 752 para. 1
"Where the Attorney-General's department must intervene
[in proceedings], the case file shall be sent to it [for
observations] for a period of seven days, after which the
file ... shall be sent to the reporting judge and the
other non-presiding judges for the purposes of a final
decision; the reporting judge may keep the file for
fourteen days and the other judges for seven days."
19. Under the Constitution and the Institutional Law
governing the Attorney-General's department, the latter must
intervene in all proceedings in which the public interest
(interesse público) is at stake.
In labour-law cases the practice of the Employment
Division of the Supreme Court is for the representative of
the Attorney-General's department at that court (a
Deputy Attorney-General) to be given the file so that he can
express an opinion on the merits of the appeal. As a general
rule, that representative also takes part in the sitting held to
consider the appeal.
D. The Code of Labour Procedure
20. The Government cited the following provisions of the Code
of Labour Procedure:
Article 8
"The representatives of the Attorney-General's department
must automatically represent:
(a) workers and their families;
(b) ..."
Article 10
"Where a legal representative is appointed, the automatic
representation by the Attorney-General's department shall
cease, without prejudice to that department's
intervention in an `associated' capacity."
PROCEEDINGS BEFORE THE COMMISSION
21. Mr Lobo Machado applied to the Commission on
2 November 1989. Relying on Article 6 para. 1 (art. 6-1) of the
Convention, he complained, firstly, that there had been no fresh
assessment by the Court of Appeal of the evidence relating to
facts held to have been established by the court of first
instance and no public hearing in either the Court of Appeal or
the Supreme Court; he further complained of the role assigned to
the Attorney-General's department in the proceedings before the
Supreme Court, which he said had infringed his right to a fair
trial by an independent and impartial tribunal and had offended
the principle of equality of arms. He also alleged a breach
of Article 1 of Protocol No. 1 (P1-1) on account of the adverse
financial consequences of the failure of his action.
22. On 29 November 1993 the Commission declared admissible
the complaints relating to the participation of
the Attorney-General's department in the proceedings before the
Supreme Court and the infringement of the applicant's right to
the peaceful enjoyment of his possessions. It declared the
remainder of the application (no. 15764/89) inadmissible. In its
report of 19 May 1994 (Article 31) (art. 31), it expressed the
opinion by fourteen votes to nine that there had been a breach
of Article 6 para. 1 (art. 6-1) of the Convention and by
twenty-two votes to one that no separate issue arose
under Article 1 of Protocol No. 1 (P1-1). The full text of the
Commission's opinion and of the three separate opinions contained
in the report is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the
printed version of the judgment (in Reports of Judgments and
Decisions - 1996), but a copy of the Commission's report is
obtainable from the registry.
_______________
FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT
23. In their memorial the Government asked the Court "to hold
that there had been no 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) OF THE
CONVENTION
24. Mr Lobo Machado alleged a breach of 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 fair ... hearing ... by an
independent and impartial tribunal ..."
He complained, firstly, that he had not been able, before
the Supreme Court had given judgment, to obtain a copy of the
Attorney-General's department's written opinion or, therefore,
to reply to it; and, secondly, that the Attorney-General's
department had been represented at the Supreme Court's
deliberations, held in private, although it had previously
endorsed the arguments of Petrogal. Its presence at the
deliberations was thus, he submitted, contrary to the principle
of equality of arms and called the court's independence in
question. Furthermore, as he had brought his action against a
State-owned concern, he was entitled to doubt the impartiality
of the Attorney-General's department as a representative of the
State in private disputes of a pecuniary nature.
There was nothing, he continued, to justify the
Deputy Attorney-General's being present at the deliberations.
His role had not been to advise the court or to ensure the
consistency of its case-law. Nor, in the instant case, was his
presence explained by the need to uphold the public interest,
since he had taken the side of the employer.
The duties of the Portuguese Attorney-General's
department were such that in the instant case its representative
could have received instructions from the Minister of Justice
regarding his final submissions and his role when the appeal was
being considered by the Supreme Court. As a consequence, it
could not conceivably be said, as regards Portugal, that an
infringement of the principle of fairness in civil proceedings,
by reason of the non-adversarial intervention of
the Attorney-General's department, was less serious than a
comparable infringement in criminal proceedings.
25. The Commission shared this view for the most part and
considered that the principles laid down in the Borgers
v. Belgium judgment of 30 October 1991 (Series A no. 214-B)
applied mutatis mutandis in civil proceedings. At the hearing
its Delegate said that the breach arose from the combination of
the fact that Mr Lobo Machado had been unable to reply to the
written observations of the Attorney-General's department and the
fact that a member of that department had been present at the
deliberations.
26. The Government pointed out that the parties - the
applicant and Petrogal - had exercised their procedural rights
on an equal footing through their counsel. In such proceedings
the Deputy Attorney-General, one of the members of
the Attorney-General's department in the highest grade, could not
be equated with a party. Given the special features of the
system of intervention by the Attorney-General's department at
the Supreme Court in employment cases, the considerations set out
in the Borgers judgment were not applicable in the instant case.
The member of the Attorney-General's department in its capacity
as an institution of the judicial system had no other duty than
to assist the court by giving a completely independent, objective
and impartial written opinion super partes on the legal issues
raised. In this way he contributed to ensuring good
administration of justice. The objective function of amicus
curiae discharged by the Deputy Attorney-General as a guarantor
of the consistency of the Supreme Court's case-law and protector
of the public interest in employment cases was known to the
public and especially to lawyers. It could not be said that
because he drew up an opinion based strictly on the law, the
Deputy Attorney-General became "objectively speaking" an "ally"
or an "opponent" (see the Borgers judgment previously cited,
p. 32, para. 26). The fact that one of the parties was a
State-owned concern that had subsequently become a public limited
company in which the State was the majority shareholder had no
bearing on the assessment of whether the principle of a fair
trial had been complied with. Petrogal had its own organs. In
cases such as the instant one, section 59 of the Institutional
Law governing the Attorney-General's department (see paragraph 17
above), which had been cited by the applicant, did not authorise
the Minister of Justice to give instructions concerning the task
of the Attorney-General's department.
In the instant case, that department had confined itself
to giving a brief written opinion and had had no kind of say,
whether advisory or any other, in the process whereby the court
reached its decision when sitting in private (contrast the
Borgers judgment previously cited).
27. The Belgian Government submitted (see paragraph 6 above)
that the fundamental differences between criminal and civil
proceedings before a supreme court dictated that the Borgers
precedent (see the judgment previously cited) should not be
followed where civil proceedings were concerned. At all events,
the special features of each case and of the relevant national
law had to be taken into consideration so as to avoid uniformly
condemning, as being contrary to Article 6 para. 1 (art. 6-1),
an institution which both in Belgium and in Portugal had proved
beneficial.
28. The Court notes, firstly, that the dispute in question
related to social rights and was between two clearly defined
parties: the applicant, as plaintiff, and Petrogal as defendant.
In that context the duty of the Attorney-General's department at
the Supreme Court is mainly to assist the court and to help
ensure that its case-law is consistent. Given that the rights
were social in nature, the department's intervention in the
proceedings was more particularly justified for the purposes of
upholding the public interest.
It must be observed, secondly, that Portuguese
legislation gives no indication as to how the representative of
the Attorney-General's department attached to the Employment
Division of the Supreme Court is to perform his role when that
division sits in private (contrast the Borgers judgment
previously cited, p. 28, para. 17, and p. 32, para. 28).
29. As in its judgment in the Borgers case (p. 32, para. 26),
the Court considers, however, that great importance must be
attached to the part actually played in the proceedings by the
member of the Attorney-General's department, and more
particularly to the content and effects of his observations.
These contain an opinion which derives its authority from that
of the Attorney-General's department itself. Although it is
objective and reasoned in law, the opinion is nevertheless
intended to advise and accordingly influence the Supreme Court.
In this connection, the Government emphasised the importance of
the department's contribution to ensuring the consistency of the
court's case-law and, more particularly in the instant case,
upholding the public interest.
30. In its judgment of 17 January 1970 in the Delcourt
v. Belgium case the Court noted in its reasons for holding
that Article 6 para. 1 (art. 6-1) was applicable that "the
judgment of the Court of Cassation ... may rebound in different
degrees on the position of the person concerned" (Series A
no. 11, pp. 13-14, para. 25). It has reiterated that idea on
several occasions (see, mutatis mutandis, the following
judgments: Pakelli v. Germany, 25 April 1983, Series A no. 64,
p. 17, para. 36; Pham Hoang v. France, 25 September 1992,
Series A no. 243, p. 23, para. 40; and Ruiz-Mateos v. Spain,
23 June 1993, Series A no. 262, p. 25, para. 63). The same
applies in the instant case, since the outcome of the appeal
could have affected the amount of Mr Lobo Machado's retirement
pension.
31. Regard being had, therefore, to what was at stake for the
applicant in the proceedings in the Supreme Court and to the
nature of the Deputy Attorney-General's opinion, in which it was
advocated that the appeal should be dismissed (see paragraph 14
above), the fact that it was impossible for Mr Lobo Machado to
obtain a copy of it and reply to it before judgment was given
infringed his right to adversarial proceedings. That right means
in principle the opportunity for the parties to a criminal or
civil trial to have knowledge of and comment on all evidence
adduced or observations filed, even by an independent member of
the national legal service, with a view to influencing the
court's decision (see, among other authorities and mutatis
mutandis, the following judgments: Ruiz-Mateos, previously cited,
p. 25, para. 63; McMichael v. the United Kingdom,
24 February 1995, Series A no. 307-B, pp. 53-54, para. 80; and
Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 16,
para. 42).
The Court finds that this fact in itself amounts to a
breach of Article 6 para. 1 (art. 6-1).
32. The breach in question was aggravated by the presence of
the Deputy Attorney-General at the Supreme Court's private
sitting. Even if he had no kind of say, whether advisory or any
other (see paragraphs 26 and 28 above), it afforded him, if only
to outward appearances, an additional opportunity to bolster his
opinion in private, without fear of contradiction (see the
Borgers judgment previously cited, p. 32, para. 28).
The fact that his presence gave the Attorney-General's
department the chance to contribute to maintaining the
consistency of the case-law cannot alter that finding, since
having a member present is not the only means of furthering that
aim, as is shown by the practice of most other member States of
the Council of Europe.
There has therefore been a breach of Article 6 para. 1
(art. 6-1) in this respect also.
33. These conclusions make it unnecessary for the Court to
rule on the complaint that the Supreme Court was neither
impartial nor independent.
II. ALLEGED VIOLATION OF Article 1 OF Protocol No. 1 (P1-1)
34. Before the Commission the applicant alleged a violation
of Article 1 of Protocol No. 1 (P1-1), but he did not reiterate
that complaint before the Court.
35. The Court does not consider that it must raise the issue
of its own motion.
III. APPLICATION OF Article 50 (art. 50) OF THE CONVENTION
36. Article 50 (art. 50) of the Convention provides:
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention, and
if the internal law of the said Party allows only partial
reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured
party."
A. Damage
37. Mr Lobo Machado said that quite apart from the effects of
the outcome of the proceedings on his professional life, the
doubts about the judicial system that had been raised by the
instant case had impaired for ever his confidence in democratic
institutions. The non-pecuniary damage sustained could not be
less than 3,500,000 escudos (PTE).
38. The Government submitted that there was no causal link
between the breach and the alleged damage.
39. The Delegate of the Commission did not express an
opinion.
40. The Court considers that the finding of a breach
of Article 6 (art. 6) constitutes in itself sufficient just
satisfaction under this head.
B. Costs and expenses
41. The applicant also sought PTE 1,500,000 in respect of
costs and expenses incurred for his representation before the
Convention institutions.
42. No view was expressed by either the Government or the
Delegate of the Commission.
43. The Court allows Mr Lobo Machado's claim and therefore
awards him the sum sought, from which 21,724 French francs paid
by the Council of Europe by way of legal aid fall to be deducted.
C. Default interest
According to the information available to the Court, the
statutory rate of interest applicable in Portugal at the date of
adoption of the present judgment is 10% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a breach of Article 6 para. 1
(art. 6-1) of the Convention;
2. Holds that it is unnecessary to consider the case under
Article 1 of Protocol No. 1 (P1-1);
3. Holds that this judgment constitutes in itself sufficient
just satisfaction as to the alleged damage;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months, 1,500,000 (one million five hundred
thousand) escudos, less 21,724 (twenty-one thousand seven
hundred and twenty-four) French francs, to be converted
into escudos at the rate of exchange applicable at the
date of delivery of this judgment, for costs and
expenses;
(b) that simple interest at an annual rate of 10% shall
be payable on these sums from the expiry of the
above-mentioned three months until settlement;
5. 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
20 February 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the
concurring opinion of Mr Lopes Rocha is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
CONCURRING OPINION OF JUDGE LOPES ROCHA
(Translation)
I concur in the finding that there has been a breach of
Article 6 para. 1 (art. 6-1) of the Convention, but I cannot
agree with all of the reasons set out in paragraphs 31 and 32 of
the judgment.
As is clear from paragraph 14, the opinion of the
Deputy Attorney-General, which the plaintiff was unaware of, did
not adduce any new argument in support of dismissing the appeal.
It did no more than point out that the plaintiff's arguments had
already been considered in the Court of Appeal's judgment, which
was sufficient in itself as regards the reasons given for it, and
that any further consideration was therefore unnecessary.
The fact, on its own, that it was impossible for the
applicant to have knowledge of the content of the
Deputy Attorney-General's opinion before judgment was delivered
and to reply to it does not suffice for it to be found that there
has been a breach of Article 6 para. 1 (art. 6-1) as is held in
paragraph 31.
The finding of a breach should, rather, be based on all
the circumstances of the case.
What must be assessed from the point of view of a breach
of the right to a fair hearing is the fact that the member of the
Attorney-General's department attended the Supreme Court's
private sitting without the plaintiff's being able to be present,
which afforded him an additional opportunity to bolster his
opinion in private without fear of contradiction.
Admittedly the member of the Attorney-General's
department was not a "party" in the technical meaning of the term
in procedural law. But his intervention in support of the Court
of Appeal's decision, combined with the fact of his presence at
the Supreme Court's sitting, even if he had no kind of say,
whether advisory or any other, must amount to a procedural
disadvantage for the plaintiff. The latter found himself in the
position of having to argue simultaneously against the opposing
side and a public entity, both united in denying the right that
he was seeking to claim in the Supreme Court; that situation
reflected a manifest inequality and thus infringed the right to
a fair hearing, seeing that in law fairness is a concept which
takes account of the spirit of the law rather than the letter of
it. Furthermore, the concepts of fairness and equality are
equipollent.
In short, the situation of inequality was incompatible
with the requirements of fair proceedings within the meaning
of Article 6 para. 1 (art. 6-1) of the Convention.