CASE OF AUSTIN AND BUDIARTINI v. PORTUGAL
(Application no. 70692/13)
25 July 2017
This judgment is final but it may be subject to editorial revision.
In the case of Austin and Budiartini v. Portugal,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Egidijus Kūris, President,
Paulo Pinto de Albuquerque,
Iulia Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 4 July 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 70692/13) 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 Mr Mark Andrew Austin (“the first applicant”), a British national, and Mrs Luh Suci Budiartini (“the second applicant”), an Indonesian national, on 29 October 2013.
2. The applicants were represented by Mr Andreas Gordon O’Shea, a barrister practising in The Hague. The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General.
3. Given that one of the applicants was a British national, the British Government were invited to intervene in the proceedings (Article 36 § 1 of the Convention), but they did not express their intention to do so.
4. On 8 June 2015 the complaint concerning the length of proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE CIRCUMSTANCES OF THE CASE
5. The applicants are husband and wife. The first applicant was born in 1959 and the second applicant was born in 1981. Both live in Dorset, the United Kingdom.
6. On 10 April 2007 Mr and Mrs G. initiated civil proceedings against the applicants before the Monção Court (domestic proceedings no. 165/07.0TBMNC), with a view to obtaining recognition of their ownership of a property and a declaration that the applicants had no right of way (servidão de passagem) over that property.
8. On an unknown date Mr G.’s eight heirs were admitted as parties to the proceedings (habilitação de herdeiros). The proceedings restarted on 19 June 2007.
11. Later, the court realised that the claimants had not complied with the legal requirement to register the proceedings with the Land Registry Office (Conservatória do Registo Predial). On 18 December 2007 the proceedings were suspended until an unknown date on which the claimants complied with that requirement.
12. On 24 April 2008 the court realised that the applicants had also not complied with the legal requirement to register the counterclaim with the Land Registry Office. The court ordered them to do so within forty days. The applicants requested that the deadline be extended by thirty days.
13. On an unknown date the applicants lodged an application for evidence to be immediately obtained from a witness who was residing in the United Kingdom. Considering that the applicants had not supplemented the application by complying with the necessary legal requirements for such a procedural act, the court dismissed the application on 26 January 2009.
16. On an unknown date a hearing was scheduled for an unknown day in April 2010.
17. On the scheduled day the hearing was adjourned due to the absence of the claimants.
18. On 29 September 2010 a hearing was held. Twelve other hearings took place, the last of which was on 12 December 2011.
20. On 20 November 2012 the Guimarães Court of Appeal dismissed the appeal and upheld the first-instance decision. On 5 December 2012 the applicants appealed against that judgment to the Supreme Court of Justice.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
22. The applicants 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, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
23. The Government argued that the application was inadmissible for non-exhaustion of domestic remedies. In their view, the applicants should have used the remedy provided for by section 12 of Law no. 67/2007 of 31 December 2007, which set out the rules on the non-contractual civil liability of State and public entities.
24. The Court observes that, prior to 27 May 2014, Portuguese practice did not provide for an effective legal remedy allowing a claimant to obtain compensation for the excessive length of proceedings (see Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, §§ 51-57, 10 June 2008, and Valada Matos das Neves v. Portugal, no. 73798/13, § 106, 29 October 2015).
25. The Court considers that at the time the instant application was lodged - 29 October 2013, thus before 27 May 2014 - the applicants had no effective remedy against the excessive length of the proceedings (see, mutatis mutandis, Valada Matos das Neves, cited above, § 107, with further references; see also Nouhaud and Others v. France, no. 33424/96, §§ 44 and 45, 9 July 2002).
26. It follows that the Government’s preliminary objection of non-exhaustion should be dismissed.
27. The Court further notes that the application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.
1. The period to be taken into consideration
28. The period to be taken into consideration began on 14 May 2007, when the applicants were summonsed (see paragraph 7 above), and ended on 7 May 2013, when the applicants’ lawyer was notified of the Supreme Court of Justice judgment (see paragraph 21 above). It thus lasted five years eleven months and twenty-five days over three levels of jurisdiction.
2. The reasonableness of the length of the proceedings
29. The Government were of the opinion that the proceedings in the instant case had not been too lengthy, considering their complexity owing to the number of parties to the proceedings, the number of hearings, and the two appeals. Lastly, the Government emphasised that it should be considered that the applicants had no real interest in the proceedings, as the proceedings had not been initiated by them.
30. At the outset, the Court reiterates that Article 6 § 1 requires that cases be heard “within a reasonable time”; in so providing, the Convention underlines the importance of rendering justice without delays which might jeopardise its effectiveness and credibility (see H. v. France, no. 10073/82, § 58, 24 October 1989). In principle, this applies whether the domestic proceedings are initiated by the applicants or not.
31. The Court further 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, and Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV).
32. 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 Euroatlantic Airways - Transportes Aéreos, S.A. v. Portugal [Committee], no. 34676/13, 8 December 2015).
33. 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. In particular, the case does not appear to have been particularly complex. Although the applicants were responsible for minor delays (see paragraphs 10 and 12 above), the Court considers that the bulk of the delay occurred as a result of the manner in which the Monção Court handled the case. In particular, the Court notes that the first-instance judgment was issued on 3 March 2012 (see paragraph 19 above), four years and ten months after the claim against the applicants had been lodged. The Court also notes, inter alia, that it took six months for the Monção Court to notify the applicants that they had failed to register their counterclaim with the Land Registry Office (see paragraph 12 above), and at least seven months to hold the videoconference (see paragraph 15 above).
34. Having examined all the material submitted, and 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.
35. Accordingly, there has been a breach of Article 6 § 1.
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.”
37. The applicants claimed 835,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
38. The Government contested these claims.
39. The Court considers, on the one hand, that the applicants failed to prove the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicants EUR 975 in respect of non-pecuniary damage.
B. Costs and expenses
40. The applicants also claimed EUR 43,326.14 for costs and expenses incurred before the domestic courts and EUR 4,603.30 for those incurred before the Court.
41. The Government contested these claims.
42. 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 sum of EUR 1,000 for the proceedings before it.
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 Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicants, within three months, the following amounts:
(i) EUR 975 (nine hundred and seventy-five 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 applicants, 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 applicants’ claim for just satisfaction.
Done in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea Tamietti Egidijus
Deputy Registrar President