European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

CASE OF PINA E MOURA v. PORTUGAL

 

(Application no. 44199/12)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

2 October 2014

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Pina e Moura v. Portugal,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Mirjana Lazarova Trajkovska, President,
          Paulo Pinto de Albuquerque,
          Ksenija Turković, judges,

and Søren Prebensen, Acting Deputy Section Registrar,

Having deliberated in private on 9 September 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 44199/12) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Mr António de Carvalho Pina e Moura (“the applicant”), on 6 July 2012.

2.  The applicant was represented by Mr J. J. Ferreira Alves, a lawyer practising in Matosinhos (Portugal). The Portuguese Government (“the Government”) were represented by their Agent, Mrs M. F. da Graça Carvalho, Deputy-Attorney General.

3.  On 1 October 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1946 and lives in Batalha (Portugal).                                                                                       

5.  On 15 March 2006 the applicant lodged an action with the Court of Porto de Mós (domestic proceedings no. 607/06.2TBPMS) seeking the recognition of an easement (servidão de passagem).

6.  On 24 May 2006 and on 27 June 2007 the applicant rectified the initial application upon request of the Court of Porto de Mós.

7.  Between 28 April and 2 May 2006 the defendants lodged their submissions in reply (contestação) and informed the Court of Porto de Mós that one of the defendants had died.

8.  On 9 January 2008 the Court stayed the proceedings, pending the outcome of the inheritance proceedings in relation to the deceased defendant.

9.  On 28 January 2008 the applicant applied to the Court for leave to continue the proceedings against the widow of the deceased defendant (incidente de habilitação de herdeiros).

10.  On 30 July 2008 the applicant requested that the proceedings also continued against M. as heir of the deceased.

11.  On 18 November 2008 the applicant’s lawyer resigned. A new one was appointed on 10 March 2009.

12.  On 20 March 2010 the Court of Porto de Mós requested the applicant to provide information with regard to the relationship between M. and the deceased defendant.

13.  On 15 July 2010 the Court of Porto de Mós delivered a decision concerning the proceedings of inheritance, stating that the deceased defendant’s widow and M. should replace him in the proceedings.

14.  On 8 November 2011 the Court of Porto de Mós, taking into account its decision of 15 July 2010, resumed the main proceedings.

15.  On 23 October 2012 the applicant’s representative resigned. The applicant appointed a new one on 19 December 2012.

16.  On 7 February 2013 the judge gave directions (despacho saneador) setting out the matters that had already been established and those that remained outstanding. The case was set down for hearing on 7 June 2013. Two more hearings were scheduled for 12 July and 13 September 2013.

17.  On 29 November 2013 the court of first instance partially found in favour of the applicant.

18.  On 28 January 2014 the applicant appealed against that decision to the Coimbra Court of Appeal (Tribunal da Relação).

19.  The proceedings are still pending at second instance.

II. RELEVANT DOMESTIC LAW

20.  The Code of Civil Procedure provides as follow:

Article 276

“1. The proceedings are stayed in the following cases:

a) When a party to the proceedings dies (...)

Article 277

1. When a document proving the death of a party (...) is submitted to the court, the proceedings must be immediately stayed (...)

2. The relevant party to the proceedings must inform [the Court] about the death (...), by submitting the relevant document.

(...)

THE LAW

I.  ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

21.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement. He also complained that he had not had an effective remedy in this respect. They relied on Articles 6 § 1 and 13 of the Convention, which reads as follows in the relevant parts:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”

Article 13

“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority...”

22.  The Government contested that argument.

A.  Admissibility

23.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1. The alleged violation of Article 6 § 1 of the Convention

24.  The period to be taken into consideration began on 15 March 2006 and has not yet ended. It has thus lasted eight years, five months and twenty five days for two levels of jurisdiction.

25.  The Government acknowledged that the proceedings had to date been subject to a delay and that their length had exceeded what would legitimately be expected. Nevertheless, the Government were of the opinion that the length of the proceedings in the present case had been caused by the applicant’s behaviour and could not been attributable to the courts. According to the Government, the only delay attributable to the authorities had been the one-year break between 15 July 2010 and 8 November 2011, when the Court of Porto de Mós followings its decision in the inheritance proceedings ordered the proceedings to resume.

26.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

27.  The Court firstly notes that the proceedings have already lasted more than eight years for two levels of jurisdiction.

28.  The Court notes that the case was not particularly complex and considers that the applicant can only be deemed responsible for some short delays encountered. It points out that the Government did not supply any explanation for the overall duration of the proceedings which seems manifestly excessive.

29.  Furthermore, the Court notes that the court of Porto de Mós did not sufficiently to accelerate the proceedings once it became aware of the death of one of the defendants between 28 April and 2 May 2006. In this respect, the Court notes, in particular, that the suspension of the proceedings was not ordered until 9 January 2008. According to Article 277 § 1 of the Portuguese Code of Civil Procedure, the parties are responsible for the proceedings, in particular, for submitting the relevant documents. However, this principle does not dispense the courts from ensuring compliance with the requirements of Article 6 as regards the “reasonable-time” requirement (see Gisela Müller v. Germany, no. 69584/01, § 86, 6 October 2005). Thus, the court of Porto de Mós should have sought to conduct the proceedings in a more expeditious way likely to anticipate the suspension of the main proceedings and, consequently, the applicant’s request with regard to the inheritance proceedings.

30.  The Court further notes that the inheritance proceedings came to a standstill for approximately two years between 30 July 2008 and 2 March 2010, when the national court, following the applicant’s request to consider M. as heir of the deceased, asked information about the relationship with the latter and the deceased defendant (see above §§ 10 -11).

31.  A further delay of more than one year occurred in the proceedings between 15 July 2010 and 8 November 2011, when the court of Porto de Mós adopted a decision regarding the inheritance proceedings and when it ordered the main proceedings to resume.

32.  The Court finds no justification - nor has any been put forward by the Government - for such delays, which amount to almost three years and are attributable to the national authorities (see Pélissier and Sassi v. France [GC], no. 25444/94, ECHR 1999-II).

33.  In these circumstances, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

34.  There has accordingly been a breach of Article 6 § 1 of the Convention.

2. The alleged violation of Article 13 of the Convention

35.  The applicant further complained of the fact that in Portugal there was no court to which application could be made to complain of the excessive length of proceedings. He relied on Article 13 of the Convention.

36.  The Court recalls that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 for a case to be heard within a reasonable time (Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).

37.  Having regard to its case-law in the subject (Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, 10 June 2008) and the fact that the Government have not submitted any arguments which would require it to depart from the findings in the present case, the Court considers that the applicant had had no effective remedy against the excessive length of the proceedings.

38.  Therefore, there has been a breach of Article 13 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

39.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

40.  The applicant claimed 16,000 euros (EUR) in respect of non-pecuniary damage.

41.   The Government contested the claim.

42.  The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, the Court awards the applicant EUR 4,550 under that head.

B.  Costs and expenses

43.  The applicant also claimed EUR 3,450 for the costs and expenses incurred before the Court.

44.   The Government contested the claim.

45.  Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the applicant the sum of EUR 1,000 for the proceedings before the Court.

C.  Default interest

46.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i)  EUR 4,550 (four thousand five hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 2 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

       Søren Prebensen                                                  Mirjana Lazarova Trajkovska
Acting Deputy Registrar                                                       President