European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

 

CASE OF TRIGO SARAIVA v. PORTUGAL

 

(Application no. 28381/12)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

28 January 2014

 

 

 

 

 

 

 

 

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

 




In the case of Trigo Saraiva 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 Marialena Tsirli, Acting Deputy Section Registrar,

Having deliberated in private on 7 January 2014,

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

PROCEDURE

1.  The case originated in an application (no. 28381/12) 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 Duarte José Trigo Saraiva (“the applicant”), on 12 April 2012.

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

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

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1949 and lives in Matosinhos.

5.  On 27 October 2004 the Union for Tax Workers (Sindicato dos Trabalhadores dos Impostos) brought an administrative action against the Ministry of Finance on behalf of the applicant and three other employees regarding their early retirement before the Administrative and Fiscal Court of Lisbon (domestic proceedings no. 2594/04.2BELSB).

6.  The Administrative and Fiscal Court of Lisbon dismissed the action on 20 October 2005. The Union appealed to the Central Administrative Court of the South.

7.  On 27 March 2008, the Central Administrative Court of the South reversed the first instance decision and ordered the Ministry of Finance to revoke the contested administrative Act which had not accepted the early retirement and to proceed with a new evaluation of the applicant’s request.

8.  On 29 December 2008 the Union started enforcement proceedings against the Ministry of Finance before the Administrative Court of Lisbon.

9.  On 31 May 2012 the Administrative Court of Lisbon dismissed the action.

THE LAW

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

10.  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 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 this Convention are violated shall have an effective remedy before a national authority...”

11.  The Government contested that argument.

12.  The proceedings began on 27 October 2004 when the Union for Tax workers lodged its action and ended on 27 March 2008 with the judgment of the Central Administrative Court. It thus lasted three years and five months for two levels of jurisdiction.

13. The enforcement proceedings started on 29 December 2008 and ended on 31 May 2012, which corresponds to a period of three years, five months and two days. The overall length of the proceedings is therefore six years and ten months.

A.  Admissibility

14.  The Government claimed that the application was incompatible ratione personae as the applicant was not a party of the proceedings at the domestic level.

15.  The Court reiterates that the concept of “victim” under Article 34 of the Convention must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act. There must, however, be a sufficiently direct link between the applicant and the harm which he considers he has sustained on account of the alleged violation (Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 35, ECHR 2004-III).

16.  In the present case, the Court notes that the applicant was not a party to the proceedings in his own name, but through the intermediary of a Union which had been established for the purpose of defending its members’ interests. The standing of associations to bring legal proceedings in defence of their member’s interests is recognised by the legislation of Portugal and of most European countries. That is precisely the situation in the present case. For these reasons, the Court considers that the applicant has been directly affected by the length of the impugned proceedings, and that therefore he can claim to be a victim, within the meaning of article 34 of the alleged violation of the Convention (Gorraiz Lizarraga and Others v. Spain, cited above, §§ 37-39). The Government’s objection must consequently be dismissed.

17.  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)  Alleged violation of Article 6 §1 of the Convention

18.  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).

19.  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).

20.  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.

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

2)  Alleged violation of Article 13 of the Convention

22.  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).

23. 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.

24.  Therefore, there has been a breach of Article 13.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

25.  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

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

27.  The Government contested the claim.

28.  The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, the Court awards the applicant EUR 3,900 under that head.

B.  Costs and expenses

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

30.  The Government contested the claim, considering that the applicant had not given justification for all the costs and expenses incurred.

31.  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

32.  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 3,900 (three thousand and nine hundred 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 28 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Marialena Tsirli                                                                Dragoljub Popović
Acting Deputy Registrar                                                            President