European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

 

 

CASE OF OLIVEIRA MODESTO AND OTHERS v. PORTUGAL

 

(Application no. 68445/10)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

 

 

 

STRASBOURG

 

29 January 2019

 

 

 

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

In the case of Oliveira Modesto and Others v. Portugal,

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

Egidijus Kūris, President,
Paulo Pinto de Albuquerque,
Iulia Antoanella Motoc, judges,

and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 8 January 2019,

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

PROCEDURE

1. The case originated in an application (no. 68445/10) 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 251 Portuguese nationals listed in the Annex ("the applicants"), on 17 November 2010.

2. The first applicant represented all the applicants and was authorised to do so by the President of the former Second Section of the Court, in accordance with Rule 36 § 3 of the Rules of Court. The Portuguese Government ("the Government") were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General.

3. On 22 March 2012 the Government were given notice of the application.

4. The Government objected to the examination of the application by a Committee. Having considered the Government's objection, the Court rejects it.

THE FACTS

1.     THE CIRCUMSTANCES OF THE CASE

5. The applicants are former employees and heirs of former employees of company F. - C.M.E. S.A. (hereinafter "company F."), which owned a factory making engines and electric alternators in Aveiro. The company experienced a series of financial problems in 1985, leading to it being unable to continue paying salaries to its staff.

A. Insolvency and judicial liquidation proceedings

6. On 4 October 1994 the Coimbra Court of Appeal declared company F. insolvent. On 8 May 1995 the case was remitted to the Aveiro Court.

7 . By a decision that was made public on 3 July 1995 the Aveiro Court ordered that creditors wishing to declare their claims ( reclamação de créditos ) should be summoned.

8 . Having learnt that a site division and urban development plan ( plano de pormenor ) encompassing the land of company F. had been drawn up by the municipality of Aveiro, former employees of the company, including some of the applicants, applied to the Aveiro Court on 12 December 1997, requesting that it wait for the plan to be approved before ordering the sale of company F.'s assets. They hoped that the plan would lead to a rise in the land's value and thus increase the prospects of their recovering what they were owed.

9 . On 24 March 2000 the Aveiro Court issued a decision on the classification of the various claims ( sentença de graduação de créditos ). Some of the creditors appealed against that decision to the Coimbra Court of Appeal.

10 . In a decision of 7 November 2000 the Aveiro Court authorised the suspension of the sale (see paragraph 8 above) until the approval of the site division and urban development plan.

11 . In a judgment of 23 January 2001 the Coimbra Court of Appeal delivered a judgment on the classification of the former employees' claims. On 9 February 2001 the first applicant appealed against that judgment to the Supreme Court of Justice.

12 . On 19 February 2001 the applicant Rosa Rodrigues Casal (applicant no. 199 in the appended table) lodged an application with the Aveiro Court, seeking to register a claim against the insolvent company.

13 . On 6 December 2001 the Supreme Court of Justice delivered a judgment confirming the classification of claims by the Coimbra Court of Appeal (see paragraphs 9 and 11 above).

14. On 27 November 2002 the judicial liquidator informed the Aveiro Court that he had suspended his activities following another court's decision. In a decision of 29 January 2003 the court appointed a new liquidator.

15. On 15 April 2009, as part of a redraft of the court-distribution map (setting out the geographical areas over which courts had jurisdiction), the proceedings were transferred to the Aveiro Commercial Court.

16 . On 29 July 2009 the municipality of Aveiro, the body of creditors and company G. entered into an agreement for the exchange of land between company F., company G., a neighbouring company, and the Aveiro municipality.

17. On an unspecified date a part of the land measuring 17,629.10 sq. m and a separate plot were put up for sale.

18. On 14 July 2011 a session at which offers to purchase could be made took place, and no offers were received. The court ordered the judicial liquidator to submit the documentation concerning that session and the proposal for sale within ten days.

19. On 6 December 2011 the court ordered the judicial liquidator to provide information on the state of the proceedings.

20. Since the judicial liquidator had not replied to the previous request, on 6 March 2012 the court ordered him to urgently provide information on the state of the proceedings, giving him a ten-day time-limit.

21. In the absence of any reply to the two previous requests, on 17 April 2012 the court ordered the judicial liquidator to provide information on the state of the proceedings, and also ordered that he would be fined if he did not provide such a reply.

22. On 23 April 2012 the judicial liquidator informed the court that no offers to purchase had been received, and he proposed to initiate contact with companies which specialised in the real-estate sector.

23 . On 2 May 2012 the court ordered the judicial liquidator to establish contact with real-estate companies, and gave him a ten-day time-limit.

24. On 29 May 2012 the judicial liquidator informed the court that he had contacted some real-estate companies, but he requested ten more days in order to finalise the task. On 4 June 2012 he was informed that his request had been granted.

25 . On 12 June 2012 the judge ordered the judicial liquidator to draw up a report indicating the detailed amounts to be allocated to each creditor in the light of the Supreme Court of Justice's judgment (see paragraph 13 above).

26 . Following the Aveiro Commercial Court insisting that the judicial liquidator provide information on the progress regarding contact with real-estate companies by way of three notifications (sent to him on 27 September, 19 October and 19 November 2012), on 16 January 2013 he informed the court that only one real-estate company had expressed interest in mediating the sale of the property.

27 . On 6 March 2013 the court invited the judicial liquidator to initiate new contact with real-estate companies by email, since until then contact with the real-estate companies had been established in person.

28 . On 18 December 2013 the judicial liquidator informed the court that contact by email had been made with 119 real-estate companies, and offers to acquire the property were to be received until 15 January 2014. In the meantime, the court had sent him three notifications in that regard - on 21 May, 10 July and 11 November 2013.

29 . On 17 June 2014 the judicial liquidator replied to the 12 June 2012 court order (see paragraph 25 above). He informed the court that most former employees had not detailed the origin of their claims, and therefore it was not possible for him to provide a detailed plan on payment. On the same date the judicial liquidator informed the court that only three real-estate companies had replied and that those replies were negative. He then suggested that a new procedure for a sale by private agreement should be initiated, this time for 50% of the previously requested amount.

30. In reply to the judicial liquidator's information, on 11 July 2014 the judge ordered him to provide information on the amount already obtained as proceeds of the liquidation ( produto da liquidação ), by reference to real estate or movable property, in order to assess the practical effects of distributing those amounts among the creditors. As the judicial liquidator did not reply to that request, on 1 July 2015, 21 April 2016 and 13 June 2016 the court insisted that he do so.

31 . Meanwhile, on 30 September and 9 October 2015 the judicial liquidator was summoned in two sets of tax enforcement proceedings against company F.

32 . On 23 November 2016 the judicial liquidator informed the court of the two sets of tax enforcement proceedings which were ongoing.

33. On 6 July 2017 the court notified the judicial liquidator that he should provide information on the state of the proceedings within ten days.

34 . On 1 September 2017 the court insisted that the judicial liquidator provide information on the state of the proceedings.

35 . On 20 September 2017 the judicial liquidator informed the court that a new tax issue was an obstacle in the insolvency proceedings.

36 . According to the latest information received by the Court on 21 May 2018, the insolvency proceedings were, on that date, still ongoing.

B. Application no. 34422/97

37. On 11 September 1996 the applicants and other individuals (represented in the present case by their heirs) identified by numbers 1 to 131 in the Annex lodged an application with the Court to complain about the duration of the proceedings at issue before the Aveiro Court.

38 . In a judgment of 8 June 2000, the Court found a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings, awarding each applicant the sum of 900,000 Portuguese escudos (PTE - about EUR 4,489) in respect of non-pecuniary damage and PTE 313,840 (about EUR 1,565) to the first applicant for costs and expenses.

39. The just satisfaction was paid to the applicants on 11 and 12 December 2000.

40. By Resolution CM/ResDH(2016)149 adopted on 8 June 2016 at the 1259 th meeting of the Ministers' Deputies, the Committee of Ministers declared that it had exercised its functions under Article 46, paragraph 2 of the Convention in respect of application no. 34422/97, and decided to close the examination of its enforcement.

 

II. RELEVANT DOMESTIC LAW

41 . The relevant part of the Portuguese Code on special procedures for the recovery of companies and insolvency ( Código dos Processos Especiais de Recuperação da Empresa e de Falência - CPEREF), in the version in force at the material time (Legislative Decree no. 132/93, of 23 April 1993), provided as follows:

Article 128
Decision to declare insolvency

"1. In the decision declaring insolvency, the court shall:

...

(e) Define a time-limit going from 20 to 60 days for the creditors' declaration of claims.

..."

THE LAW

I. PRELIMINARY ISSUES

The locus standi of the heirs of the deceased applicants

42. By letters of 3 October 2017 and 21 May 2018 the first applicant informed the Court about the death of the following applicants: Mr Rafael Policarpo Neves da Silva, Ms Maria Odete Vieira de Sousa, Ms Isaura Pereira Cortês, Mr António da Costa Santos, Mr Manuel da Loura Gamelas, Mr Arlindo de Sousa Rodrigues da Silva, Mr António Nobre Machado, Mr Carlos Alberto Simões Instrumento, Ms Maria Clara Costa Mesquita, Ms Maria Vitória Branco Rodrigues da Rocha, Ms Maria Carolina Sousa Almeida Neto, Mr João Marques Rodrigues, Ms Lídia Lopes, Ms Fernanda Pais da Cruz Silva, Ms Ana Clara dos Santos Silva Ferreira, Ms Maria da Soledade Freire Pinto Nogueira, and Mr Jorge Alberto Pinto Nogueira.

43. The Court takes note of the wish of those applicants' relatives (identified in the Annex) to pursue the proceedings in their stead. To that end, the first applicant submitted notary inheritance certificates ( habilitações de herdeiros notariais ) in respect of all the late applicants except Mr João Marques Rodrigues, certifying that the relatives are their heirs. The first applicant also submitted copies of requests made by the relatives of all the late applicants asking the Aveiro Court to continue the proceedings on their behalf.

44. Regarding the late applicant Mr João Marques Rodrigues, the first applicant also submitted documents (namely the late applicant's death certificate and his wife's birth certificate) to show that he had been married to Ms Maria Teresa dos Anjos Aires Rodrigues at the date of his death.

45. The Court reiterates that where applicants die during the examination of a case, their heirs or next-of-kin may in principle pursue the application on their behalf (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII; see also Ječius v. Lithuania , no. 34578/97, § 41, ECHR 2000-IX, where the applicant's widow had a legitimate interest in pursuing the application). Furthermore, in some cases concerning the length of proceedings, the Court has recognised the right of the applicant's heirs or close family members to pursue the application (see, for example, Horváthová v. Slovakia , no. 74456/01, §§ 26-27, 17 May 2005).

46. The Court notes that the rights at stake in the present case are very similar to those at the heart of the cases referred to above. Nothing suggests that the rights which the applicants sought to protect through the Convention mechanism were eminently personal and non-transferable (see, mutatis mutandis , Malhous , decision cited above).

47. The Court also notes that the Government have not disputed that the applicants' relatives are entitled to pursue the application on their behalf and the Court sees no reason to hold otherwise.

48. In view of the above, the Court finds that the applicants' relatives identified in the Annex have standing to pursue the proceedings in the deceased applicants' stead.

49. However, for practical reasons, the Court will continue to refer to the initial applicants as "the applicants" (see, mutatis mutandis , Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI).

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

50 . The applicants complained that the length of the proceedings since 8 June 2000 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..."

A. Admissibility

1. The Government's submissions

51. The Government argued that the application was inadmissible as an abuse of the right of petition. According to the Government, by requesting that the proceedings be stayed pending the outcome of the site division and urban development plan, the applicants were themselves responsible for a delay in the proceedings.

52. The Government also argued that the applicant Ms. Rosa Rodrigues Casal was not a party to the proceedings and was therefore not a victim of the alleged violation, as she had not declared her claims at the stage of the proceedings when she was supposed to. In fact, when she had lodged her requests to have her claims recognised, her claims had not been admissible.

53. The applicants did not reply to these objections.

2. The Court's assessment

(a) The Government's objection as to abuse of the right of petition

54. In relation to the Government's argument that the applicants abused the rights set out in the Convention within the meaning of Article 35 § 3 (a), the Court reiterates that an application may only be rejected as an abuse of process in extraordinary circumstances, notably when there is persistent use of insulting or provocative language by an applicant (see Felbab v. Serbia , no. 14011/07, § 56, 14 April 2009), when the application was knowingly based on untrue facts, or when incomplete and thus misleading information concerning the very core of the case was submitted to the Court (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).

55. Having regard to its case-law, the Court considers that the applicants' requests regarding the site division and urban development plan (see paragraph 8 above) during the domestic proceedings are not of such a nature as would justify the application being declared inadmissible as an abuse of the right of petition.

56. It follows that the Government's objection as to the alleged abuse of the right of petition must be rejected.

(b) The Government's objection regarding the applicant Ms Rosa Rodrigues Casal

57. The Court notes that, while the creditors had been summoned for the purpose of declaring their claims (see paragraph 7 above) the applicant Rosa Rodrigues Casal only declared her claims on 19 February 2001 (see paragraph 12 above), long after the time-limit fixed by the domestic law had expired (see paragraph 41 above). As her claims were inadmissible because they had been lodged out of time, she could no longer become a party to the insolvency proceedings.

58. It follows that this particular applicant cannot claim to be a victim of a violation of the Convention within the meaning of Article 34 of the Convention, and the application should be rejected in so far as it concerns her, pursuant to Article 35 §§ 3 and 4 of the Convention.

(c) Conclusion

59. Having regard to the above, the Court notes that the application in respect of all applicants except the applicant Rosa Rodrigues Casal 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.

B. Merits

1. The period to be taken into consideration

60. The Court notes that the applicants complained about the length of the proceedings as of 8 June 2000, the date on which the Court's judgment regarding application no. 34422/97was delivered (see paragraph 38 above). At that time, the case was pending before the Coimbra Court of Appeal and the claims were awaiting classification. The latest information made available to the Court (dated 21 May 2018 - see paragraph 36 above), indicated that the insolvency proceedings were still ongoing.

61 . The period to be taken into consideration within the framework of the examination of the present application thus extends over approximately seventeen years and eleven months.

2. The reasonableness of the length of the proceedings

62. The Government argued that the length of the proceedings was mostly due to the fact that the Aveiro Court had accepted to act in the applicants' interest at their request. They also argued that the insolvency proceedings had been delayed by the tax enforcement proceedings, as they were an obstacle to the sale procedure (see paragraphs 31 and 35 above).

63. At the outset, 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, and Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV).

64. In the present case, the Court notes that the stage of the proceedings concerning the classification of the former employees' claims was conducted in a speedy and efficient way. Indeed, on 23 January 2001 the Coimbra Court of Appeal delivered a judgment on that issue (see paragraph 11 above), and on 6 December 2001 the Supreme Court of Justice ruled on the first applicant's appeal (see paragraph 13 above). As far as this stage of the proceedings is concerned, the Court is unable to detect any significant delays imputable to the authorities.

65. Turning to the proceedings to liquidate the assets of company F., the Court observes that on 12 December 1997 former employees of company F., including some of the applicants, requested that the Aveiro Court wait for the approval of a site division and urban development plan that had been drawn up by the municipality of Aveiro before ordering the sale of company F.'s assets, hoping that the plan would lead to a rise in the value of the land and thus increase their prospects of recovering their debts (see paragraph 8 above). That request led the Aveiro Court to authorise the suspension of the sale of company F.'s assets on 7 November 2000 (see paragraph 10 above). The proceedings could not be resumed until 29 July 2009, when the body of creditors, including the applicants, concluded an agreement with the Aveiro municipality and companies F. and G. (see paragraph 16 above).

66. The Court reiterates that only delays attributable to the State may justify a finding of failure to comply with the "reasonable time" requirement (see, among other authorities, Humen v. Poland [GC], no. 26614/95, § 66, 15 October 1999, and Proszak v. Poland , 16 December 1997, § 40, Reports of Judgments and Decisions 1997-VIII).

67. In the instant case, the period between 8 June 2000 and 29 July 2009 consisted of a protraction of the case requested by the applicants and accepted by the court for their own benefit. That protraction cannot be imputed to the respondent Government. It remains to be ascertained whether there has been a breach of the "reasonable time" requirement in respect of the subsequent eight years, nine months and twenty-two days that elapsed between 30 July 2009 and 21 May 2018.

68. The Court accepts that this stage of the proceedings was of some complexity, owing to the number of parties involved. However, the Court considers that this element alone cannot explain the length of the proceedings.

69. In respect of the applicants' conduct, the Court considers that they cannot be deemed responsible for any delays encountered since 30 July 2009.

70. Turning to the conduct of the national authorities, the Court notes that there were some periods of inactivity on the part of the judicial liquidator for which the Government have provided no explanation, notably:

- it took almost four months (from 27 September 2012 until 16 January 2013) for the judicial liquidator to reply to the court order on establishing contact with real-estate companies (see paragraph 26 above);

- it took him more than nine months (from 6 March 2013 until 18 December 2013) to reply to the court order on establishing new contact with real-estate companies by email (see paragraphs 27 and 28 above);

- it took him two years (from 12 June 2012 until 17 June 2014) to reply to the court order on the report indicating the detailed amounts to be allocated to each creditor in the light of the Supreme Court of Justice's judgment (see paragraphs 25 and 29 above);

- it took him more than one year (from 30 September 2015 until 23 November 2016) to inform the Aveiro Commercial Court that he had been summoned in two sets of tax enforcement proceedings against company F. (see paragraphs 31 and 32 above).

71. Even assuming that the liquidator enjoyed a considerable amount of operational and institutional independence and did not act as a State agent, thus not rendering the respondent State directly responsible for his acts (see, mutatis mutandis , Kotov v. Russia [GC], no. 54522/00, §§ 91-107, 3 April 2012), it cannot be overlooked that the domestic courts were responsible for ensuring that he complied with the relevant rules (ibid., § 107). Indeed, the liquidator was working in the context of judicial proceedings, supervised by a court which remained responsible for the preparation and speedy conduct of the trial (see, mutatis mutandis , and with respect to court-appointed experts, Billi v. Italy , 26 February 1993, § 19, Series A no. 257-G, and Scopelliti v. Italy , 23 November 1993, § 23, Series A no. 278; see also Terebus v. Portugal , no. 5238/10 , § 49, 10 April 2014).

72. The Court understands from the facts as submitted by the parties that another main reason for the delay in the proceedings was the existence of two sets of tax enforcement proceedings which also concerned company F.'s assets. The Court notes, however, that the Government have not explained exactly how those proceedings constituted an obstacle to the insolvency proceedings, nor have they shown that the tax enforcement proceedings, which were allegedly decisive as regards the protractedness of the insolvency proceedings, were conducted diligently by the courts (see, mutatis mutandis , Jama v. Slovenia , no. 48163/08, § 36, 19 July 2012). In any event, the Aveiro Commercial Court was informed of the tax proceedings only on 23 November 2016 (see paragraph 32 above).

73. The Court reiterates that it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of Article 6 § 1 of the Convention (see Tusa v. Italy , 27 February 1992, § 17, Series A no. 231-D, and Jama v. Slovenia , cited above, § 36), and the Court finds that no convincing arguments have been adduced by the Government to show that the length of the proceedings complained of was reasonable as required by that provision.

74. In the light of the foregoing, the Court concludes that the State authorities bear primary responsibility for the excessive length of the proceedings in question from 30 July 2009 until 21 May 2018. 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.

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

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

76. 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

77. In respect of pecuniary damage, the applicants claimed the same amounts they had claimed in the domestic proceedings and which they have not yet received. In addition, the applicants claimed an amount going from 4,500 euros (EUR) to EUR 8,000 in respect of non-pecuniary damage.

78. The Government contested these claims.

79. The Court notes that the amounts claimed in respect of pecuniary damage can only be paid in the context of the domestic proceedings; it therefore rejects this claim.

80. As far as non-pecuniary damage is concerned, the Court notes that all the applicants, former employees of company F., were parties to the same domestic proceedings which concerned the liquidation of the assets of the company in question. In connection with this, the Court reiterates that where common proceedings have been found to be excessively long, it must take account of the manner in which the number of participants in such proceedings may influence the level of distress, inconvenience and uncertainty affecting each of them. Thus, a high number of participants will very probably have an impact on the amount of just satisfaction to be awarded in respect of non-pecuniary damage. Such an approach is based on the fact that the number of individuals participating in common proceedings before the domestic courts is not neutral from the perspective of the non-pecuniary damage that may be sustained by each of them as a result of the length of those proceedings when compared with the non-pecuniary damage that would be sustained by an individual who had brought identical proceedings on an individual basis. Membership of a group of people who have resolved to apply to a court on the same factual or legal basis means that both the advantages and disadvantages of common proceedings will be shared (see Arvanitaki-Roboti and Others v. Greece [GC], no. 27278/03, § 29, 15 February 2008).

81. It should also be reiterated that the Court enjoys a certain discretion in the exercise of the power conferred by Article 41, as is borne out by the adjective "just" and the phrase "if necessary" (see Guzzardi v. Italy , 6 November 1980, § 114, Series A no. 39). That being the case, and unless it concludes that the finding of a violation provides sufficient just satisfaction for the non-pecuniary damage sustained, the Court must ensure that the amount awarded is reasonable in terms of the seriousness of the violation that is found. In particular, in its assessment, it must take account of the amounts already awarded in similar cases, and, in the event of common proceedings, account of the number of applicants and the total sum awarded to them (see Arvanitaki-Roboti and Others , cited above, § 32). Given the Court's principal task, namely securing respect for human rights, rather than compensating applicants' losses minutely and exhaustively, in cases involving a significant number of victims placed in a similar situation, a uniform approach is to be adopted (see Gaglione and Others v. Italy , nos. 45867/07and 474 others, §§ 67-68, 21 December 2010).

82. The Court notes that in the ambit of the domestic proceedings, the applicants were all pursuing the same objective, namely obtaining a rise in the value of the land of company F. and thus increasing the prospects of their recovering what they were owed (see paragraph 8 above). The shared objective of the impugned proceedings was such as to alleviate the inconvenience and uncertainty experienced on account of their delay (see, mutatis mutandis , Arvanitaki-Roboti and Others , cited above, § 34, and, a contrario , Belev and Others v. Bulgaria , nos. 16354/02and 40 others, § 112, 2 April 2009, where the applicants were not parties in common proceedings, but had lodged distinct and separate judicial claims).

83. At the same time, the present case should be distinguished from those in which, instead of acting on their own behalf in judicial proceedings, affected individuals establish a legal entity to do so, a fact which can justify not taking into account the interests of individual members of the association when determining the amount of just satisfaction for non-pecuniary damage caused by the excessive length of civil proceedings (see, a contrario , Društvo Za Varstvo Upnikov v. Slovenia (dec.), no. 66433/13, §§ 54-64, 21 November 2017, where an association, and not individual creditors, brought an action against a company which had failed to meet its contractual obligations). Moreover, what was at stake for the applicants in the impugned proceedings, namely the recovery of what they were owed in respect of their work, was such as to exacerbate the prejudice sustained by them on account of the protracted nature of the proceedings (see, mutatis mutandis , Arvanitaki-Roboti and Others , cited above, § 35).

84. Having regard to the foregoing, the Court considers that the extension of the impugned proceedings beyond a "reasonable time" undoubtedly caused the applicants non-pecuniary damage which would justify an award. It also takes into consideration the number of applicants, the nature of the violation found, and the need to determine the amount in such a way that the overall sum is compatible with the relevant case-law and is reasonable in the light of what was at stake in the proceedings in question (see, mutatis mutandis , Arvanitaki-Roboti and Others , cited above, § 36). On the basis of the above considerations, and ruling on an equitable basis, the Court awards EUR 500 to each of the applicants under this head (see, mutatis mutandis , Gaglione and Others , cited above, §§ 69-70), as detailed in the appended table (account being taken of the fact that when several heirs are continuing an application on behalf of a deceased applicant, the amount shall be paid jointly).

B. Costs and expenses

85. The first applicant, Ms Maria de Lurdes Ferreira de Matos Oliveira Modesto, also claimed EUR 2,011.14 for costs and expenses incurred in presenting the applicants' case before the Court.

86. The Government contested the claim.

87. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

88. Regard being had to the documents in its possession and the above criteria, the Court considers that the sum claimed should be awarded in full.

C. Default interest

89. 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. Holds that the applicants' heirs identified in the appended table have standing to continue the present proceedings in the stead of the deceased applicants;

 

2. Declares the application inadmissible in so far as it has been lodged by Ms Rosa Rodrigues Casal;

 

3. Declares the remainder of the application admissible;

 

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

 

5. Holds

(a) that the respondent State is to pay, within three months, the following amounts:

(i) EUR 500 (five hundred euros) to each of the applicants, or EUR 500 (five hundred euros) jointly to the heirs of the late applicants who continued the proceedings before the Court in their stead, as detailed in the appended table, plus any tax that may be chargeable, in respect of non-pecuniary damage:

(ii) EUR 2,011.14 (two thousand eleven euros and fourteen cents) to the first applicant, plus any tax that may be chargeable to the first 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;

 

6. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 29 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Egidijus Kūris
Deputy Registrar President

 

 

ANNEX