European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF APARECIDA DE OLIVEIRA NABOR v. PORTUGAL

 

(Application no. 28041/13)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

5 April 2016

 

 

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




In the case of Aparecida de Oliveira Nabor v. Portugal,

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

          Boštjan M. Zupančič, President,
          Paulo Pinto de Albuquerque,
          Iulia Antoanella Motoc, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 15 March 2016,

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

PROCEDURE

1.  The case originated in an application (no. 28041/13) 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 Brazilian national, Ms Andreia Aparecida de Oliveira Nabor (“the applicant”), on 12 April 2013.

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

3.  On 19 May 2014 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1967 and lives in Porto.

5.  On 28 April 2009 the applicant lodged a request to be granted permanent disability with respect to work before the State’s Attorney’s Office of the Porto Labour Court as a consequence of a labour accident that she had suffered and with regard to which she was claiming damages and compensation.

6.  On 27 May 2009 the applicant supplied statements to the State’s Attorney’s Office in which she confirmed she was receiving medical care. On the same day the State’s Attorney’s Office request the applicant to provide her medical reports, which she submitted on 28 and 29 July 2009.

7.  Meanwhile, the applicant’s employee was notified to provide information on the applicant’s work accident, which was done on 16 June 2009.

8.  On 16 September the applicant supplied second statements, informing the State’s Attorney’s Office that she remained under medical treatment.

9.  Between 16 September 2009 and 20 September 2010 the State’s Attorney’s Office requested information regarding the evolution of the applicant’s medical treatment. Between these dates, the State’s Attorney’s Office stayed the proceedings twice for thirty days, on 5 March and on 4 May 2010, until the applicant was medically fit.

10.  On an unknown date the State’s Attorney’s Office was informed that the applicant was no longer being treated in the same clinic and on 7 October 2010 requested the applicant to inform whether she was still being treated and in which clinic. The State’s Attorney’s Office was informed that the applicant had changed her address and on 25 October 2010 requested the police to provide information on the applicant’s new address.

11.  On 4 November 2010 the applicant informed the Porto Labour Court of her new address and that she had not been certified as medically fit yet.

12.  On 5 January 2011 the court requested the Forensic Institute (Instituto de Medicina Legal) to make a medical examination of the applicant, which was made on 27 February 2011. The medical report was submitted by the Forensic Institute on 3 March 2011 in which it referred that further clinical data and an additional examination were still needed.

13.  On 9 March 2011 the Porto Labour Court the collection of those data and the realisation of the additional examination, which were submitted on 26 May and 15 June 2011, respectively. On 12 October 2011 the Forensic Institute submitted its final report.

14.  On 24 October 2011 the State’s Attorney’s Office scheduled a conciliatory hearing between the parties on 23 November 2011.

15.  The conciliatory hearing was adjourned to 24 January 2012 due to the lack of notification of the applicant’s employer. On 24 January 2012 the hearing was again adjourned to 14 March 2012 at the request of the applicant. On this date the conciliatory stage ended without an agreement between the parties.

16.  On 2 April 2012 the applicant requested the Porto Labour Court to continue with the judicial stage of the proceedings against her employer and the insurance company.

17.  Between 8 June 2012 and 21 November 2012 several procedural steps took place, mostly notifications, provision of information from the parties to the Porto Labour Court and a medical examination at the request of the applicant.

18.  The hearing started on 20 February and continued on 28 February 2013.

19.  On 8 March 2013 the Porto Labour Court delivered its decision in which it ruled against the applicant.

II. RELEVANT DOMESTIC LAW

20.  The relevant parts of the Code of Labour Procedure provide as follow:

Article 26

“Actions emerging from labour accidents and from occupational diseases are of an urgent nature ...”

Article 102

“If the victim is still not healed when the notification [of the accident] is made and if he/she is not getting proper treatment or without receiving compensation for temporary incapacity, the State’s Attorney’s Office shall request an expert medical report followed by an attempt to conciliate ...”

THE LAW

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

A.  Alleged violation of Article 6 § 1 of the Convention

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

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.”

1.  Admissibility

22.  The Government argued that the application was inadmissible on non-exhaustion grounds.

23.  The Court notes that prior to 27 May 2014, Portuguese practice did not provide for an effective legal remedy allowing a claimant to obtain compensation in a situation concerning length of proceedings (Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, § 50, 10 June 2008; and Valada Matos das Neves v. Portugal, no. 73798/13, § 106, 29 October 2015). It further notes that the application was lodged before the Court on 12 April 2013.

24. It follows that the application is neither manifestly ill-founded within the meaning of Article 35 § 3 of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

25.  The Government argued that the proceedings had not been subject to delay and that their length had not exceeded what would legitimately be expected.

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). The Court further reiterates that special diligence is necessary in employment disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17).

27.  The Court firstly notes that the proceedings lasted two years and ten months at the conciliatory stage. It also observes that the global length of the proceedings lasted three years and ten months for one level of jurisdiction. It further observes that the case was not particularly complex and it points out that the urgent nature of the proceedings required a speedy resolution of the applicant’s case (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17).

28. Examining the applicant’s behaviour, the Court notes that the applicant at some point of the proceedings had a conduct which had an adverse effect on the length proceedings, namely the fact that she only provided her medical reports two months after they were requested by the State’s Attorney’s Office (see paragraph 6 above) and the fact that she failed to immediately inform the domestic authorities of her new address (see paragraph 10 above).

29.  Having regard to Article 102 of the Code of Labour Procedure, the Court further observes that the Government failed to explain why, at the conciliatory stage, the State’s Attorney’s Office waited until 5 January 2011 to request an expert medical report with regard to the applicant’s condition.

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

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

B.  Alleged violation of Article 13 of the Convention

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

33.  The Government contested that argument.

34.  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).

35.  Having regard to its case-law on the subject (Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, 10 June 2008), 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

36.  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

37.  The applicant claimed 7,000 euros (EUR) in respect of pecuniary non-pecuniary damage.

38.  The Government contested the claim.

39.  The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award her EUR 2,600 under that head.

B.  Costs and expenses

40.  The applicant also claimed EUR 2,100 for the costs and expenses incurred before the Court.

41.  The Government contested the claim.

42.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court.

C.  Default interest

43.  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 2,600 (two thousand six 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 5 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                     Boštjan M. Zupančič
Deputy Registrar                                                                         President