European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

 

CASE OF FERREIRA ALVES v. PORTUGAL

 

(Application no. 25861/11)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

18 February 2014

 

 

 

 

 

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

 




In the case of Ferreira Alves v. Portugal,

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

          Dragoljub Popović, President,
          Paulo Pinto de Albuquerque,
          Helen Keller, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 28 January 2014,

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

PROCEDURE

1.  The case originated in an application (no. 25861/11) 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 Jorge de Jesus Ferreira Alves (“the applicant”), on 18 April 2011.

2.  The Portuguese Government (“the Government”) were represented by their Agent, Mrs M. F. Graça de Carvalho, Deputy Attorney General.

3.  On 17 October 2012 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1953 and lives in Matosinhos (Portugal).

5.  On 3 June 2005 the Ethics Council of Porto (Conselho Deontológico do Porto) of the Portuguese Bar Association (Ordem dos Advogados) instituted disciplinary proceedings against the applicant, following a complaint introduced by a client for breach of professional secrecy on 29 May 2002.

6.  On 4 March 2011 the case was dismissed on the ground that the facts had already been subject to a decision in 2009, which had been dropped as time-barred.

II.  RELEVANT DOMESTIC LAW

7.  Article 125 of the Statute of the Portuguese Bar Association reads as follows:

“The disciplinary penalties are:

(...)

e) suspension up to ten years;

f) expulsion (...)”

THE LAW

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

8.  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. He relied on Articles 6 § 1, 8, 13 and 35 of the Convention. The Court considers that the applicant’s complaints concerning the length of the proceedings should be examined only from the standpoint of Articles 6 § 1 and 13 of the Convention, which read 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...”

9.  The Government contested the applicant’s argument.

10.  The period to be taken into consideration began on 3 June 2005 and ended on 4 March 2011. It thus lasted five years and nine months for one level of jurisdiction.

A.  Alleged violation of Article 6 § 1

1)  Admissibility

a.  Whether Article 6 § 1 is applicable

11.  The Government contested that Article 6 § 1 of the Convention was applicable to the present case. As to the civil head of this Article, the Government argued that the applicant’s right to practice as a lawyer was not at stake in the disciplinary proceedings at issue.

12.  The Court finds that the applicant’s right to practice as a lawyer is a “civil right” within the meaning of Article 6 § 1 of the Convention (De Moor v. Belgium, 23 June 1994, § 47, Series A no. 292-A, with reference to the H. v. Belgium, 30 November 1987, §§ 44-48, Series A no. 127-B).

13.  The Court recalls that it has constantly held that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to “contestations” (disputes) over civil rights within the meaning of Article 6 § 1 (see, among others, Philis v. Greece (no. 2), 27 June 1997, § 45, Reports of Judgments and Decisions 1997-IV; König v. Germany, 28 June 1978, Series A no. 27, §§ 87-95).

14.  In the present case, the disciplinary proceedings had been instituted against the applicant for the alleged breach of his duty of professional secrecy. Under Article 125 of the Statute of the Portuguese Bar Association a disciplinary offence may lead to the suspension or exclusion of a lawyer from the Bar Association.

15.  It follows that, with the institution of the disciplinary proceedings, the applicant’s right to continue to practise as a lawyer was at stake in the disciplinary proceedings against him. Accordingly, Article 6 § 1 is applicable under its civil head. The Government’s objection must therefore be rejected.

b.  Whether the applicant suffered a significant disadvantage

16.  The Government also submitted that the applicant has never been prevented from exercising his profession and, consequently, he has not suffered a significant disadvantage due to the length of the proceedings. In addition, the Government argued that he has benefited from the delay considering that the alleged disciplinary offences had been dropped as time-barred in other disciplinary proceedings.

17.  The Court considers that the fact that it took five years and six months for the Portuguese Bar Association to dismiss the above disciplinary proceedings, during which period the applicant did not know which disciplinary penalty would be applied to him, must have had a negative effect on his personal situation. Thus, it cannot be said that he did not suffer a significant disadvantage as a result of the alleged violation of Article 6 § 1 of the Convention. The Government’s objection concerning the alleged lack of a significant disadvantage must therefore be rejected.

18.  The Court notes that this complaint 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.

2)  Merits

19.  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).

20.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

21.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

22.  There has accordingly been a breach of Article 6 § 1.

B.  Alleged violation of Article 13 of the Convention

1)  Admissibility

23.  The Court notes that this complaint 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.

2)  Merits

24.  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).

25.  Having regard to its case-law in the subject (Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, 10 June 2008; Garcia Franco and Others v. Portugal, no. 9273/07, § 50, 22 June 2010) and the fact that the Government have not submitted any arguments which would require it to depart from these findings in the present case, the Court considers that the applicant had had no effective remedy against the excessive length of the proceedings.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  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

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

28.  The Government contested the claim.

29.  The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him EUR 2,730 under that head.

B.  Costs and expenses

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

31.  The Government contested the claim.

32.  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, who was not represented by a lawyer, the sum of EUR 500 under this head.

C.  Default interest

33.  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 at the rate applicable at the date of settlement:

(i)  EUR 2,730 (two thousand, seven hundred and thirty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 500 (five hundred 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 18 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith                                                                Dragoljub Popović
       Registrar                                                                              President