European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF ESCALDA FERREIRA v. PORTUGAL

 

(Application no. 62252/12)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

12 January 2016

 

 

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




In the case of Escalda Ferreira 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 Araci, Deputy Section Registrar,

Having deliberated in private on 1 December 2015,

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

PROCEDURE

1.  The case originated in an application (no. 62252/12) 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 Carlo Josué Escalda Ferreira (“the applicant”), on 11 September 2012.

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

3.  On 4 March 2014 the application was communicated to the Government.

THE FACTS

I.  CIRCUMSTANCES OF THE CASE

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  On 19 January 2005 bank C. brought enforcement proceedings against the applicant before the Setúbal Court seeking the payment of a debt of 106,278.60 euros (EUR) plus EUR 23,122.72 in interest.

6.  On 8 October 2007 a writ of execution was issued against the applicant concerning an apartment he had mortgaged to the bank (penhora do apartamento). On an unspecified date a judicial enforcement officer (agente de execução) was appointed by the Setúbal Court as depositary (fiel depositário), thus being in charge of the apartment and responsible for the course of the enforcement proceedings through the sale of the applicant’s apartment, pursuant to the Code of Civil Procedure.

7.  On 29 September 2009 the applicant lodged a complaint with the Setúbal Court regarding the judicial enforcement officer’s inactivity in the proceedings.

8.  On 15 February 2012 the applicant lodged a complaint with the Commission for the Efficiency of Executions (Comissão para a Eficácia das Execuções) complaining about the judicial enforcement officer’s professional conduct which was preventing the sale of the applicant’s apartment. On 18 June 2012 the Commission acknowledged the receipt of the applicant’s complaint and in July 2012 informed him that they would start disciplinary proceedings against the judicial enforcement officer.

9.  On 3 October 2012 following the applicant’s complaint of 29 September 2009, the Setúbal Court adopted a decision removing the judicial enforcement officer from his post on the grounds of professional negligence and appointed a new one.

10.  According to the last information received by the Court on 8 July 2014 the proceedings are still pending at first instance.

 

II. RELEVANT DOMESTIC LAW

 

11.  The rules concerning enforcement proceedings have been substantially modified by Law Decree no. 38/2003 of 8 March 2003 and Law Decree no. 226/2008 of 20 November 2008 and, recently, by the last reform of the Code of Civil Procedure, provided by Law no. 41/2013 of 26 June 2013.

12.  Pursuant to Law Decree no. 38/2008, in force when the enforcement proceedings against the applicant were initiated and applicable to it even after the adoption of Law Decree no. 226/2008 of 20 November (Articles 22 and 33 of Law Decree no. 226/2008), it was for the judicial enforcement officer (solicitador de execução; or agente de execução since Law Decree no. 226/2008) to perform, under judicial supervision of the judge responsible for the enforcement proceedings, all the procedural steps related to the procedure, including subpoenas, summonses and publications. Under the authority of the Chamber of Judicial Officers (Câmara dos Solicitadores de Execução) and under the supervision of the judge in charge of the enforcement proceedings at hand, the judicial enforcement officer exercises its core competencies as the “officer of the enforcement” and other tasks assigned to him by law.

13.  When the enforcement proceedings were initiated at the domestic level, Article 808 of the Code of Civil Procedure, as provided by Law Decree no. 38/2003, provided the following in its relevant parts:

“1. It is for the judicial enforcement officer ... to perform all the steps of the enforcement proceedings (...) subject to judicial control ...

...

4. The judicial enforcement officer can only be removed from office by a decision of the judge in charge of the enforcement proceedings, ex officio or at the request of the “exequente”, for wrongful or negligent procedural conduct or for serious violations of the duties imposed on him ...

...”

14.  And Article 839, as provided by Law Decree no. 38/2003, provided that:

“1. The judicial enforcement officer will be depository of the seized assets ...

...”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

15.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

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

16.  The Government contested that argument.

17.  The period to be taken into consideration began on 8 October 2007, when the applicant was notified of the writ of execution was issued against the applicant concerning an apartment he had mortgaged to the bank, and has not yet ended. It has thus already lasted eight years for one level of jurisdiction.

A.  Admissibility

18.  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

19.  The Government submitted that the applicant could not complain of the length of the proceedings against him since he had been the one preventing them from ending by not paying the sum claimed.

20.  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).

21.  The Court observes that the proceedings, which are still pending, have already lasted eight years for one level of jurisdiction.

22.  The Court notes that it does not appear that the proceedings were particularly complex.

23.  Examining the applicant’s behaviour, the Court finds that due to the fact that he has not paid the debt yet, his conduct has an adverse effect on the length of proceedings.

24.  Notwithstanding the applicant’s contribution to the delay, the Court however cannot ignore the overall duration of the proceedings and in particular the inactivity of the domestic court following the applicant’s complaint against the judicial enforcement officer. The Court notes in this regard, that it took three years to the Setúbal Court to adopt a decision concerning the judicial enforcement officer’s conduct in the proceedings (see paragraphs 7 - 9 above). The Court further observes that since a new judicial enforcement officer was appointed, in 2012, no steps were taken in order to accelerate the sale of the applicant’s apartment.

25.  In this context, the Court notes that the applicant cannot be deemed as the sole responsible for the length of proceedings and reiterates that it is for the State to organise its legal system in such a way to enable its courts to comply with the requirement of Article 6 § 1 of the Convention (see, mutatis mutandis, Tusa v. Italy, 27 February 1992, § 17, Series A no. 231-D; and Jama v. Slovenia, no. 48163/08, § 36, 19 July 2012).

26.  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.

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

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

28.  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.”

29.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

 

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

Done in English, and notified in writing on 12 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Boštjan M. Zupančič
Deputy Registrar President