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You are here: BAILII >> Databases >> European Court of Human Rights >> MARTINS MOREIRA v. PORTUGAL - 11371/85 [1988] ECHR 21 (26 October 1988) URL: http://www.bailii.org/eu/cases/ECHR/1988/21.html Cite as: [1988] ECHR 21, (1991) 13 EHRR 517 |
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In the Martins Moreira case *,
_______________
(*) Note by the Registrar: The case is numbered 21/1987/144/198.
The second figure indicates the year in which the case was referred to
the Court and the first figure its place on the list of cases referred
in that year; the last two figures indicate, respectively, the case's
order on the list of cases and of originating applications (to the
Commission) referred to the Court since its creation.
_______________
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr J. Pinheiro Farinha,
Sir Vincent Evans,
Mr R. Macdonald,
Mr J.A. Carrillo Salcedo,
Mr N. Valticos,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 June and 7 October 1988,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") and by the Government of Portugal
("the Government") on 18 December 1987 and 29 January 1988
respectively, within the three-month period laid down in
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention.
It originated in an application (no. 11371/85) against Portugal lodged
with the Commission under Article 25 (art. 25) by
Mr José Martins Moreira, a Portuguese national, on 24 July 1984.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) of the Convention and to the declaration whereby Portugal
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the Government's application referred to Articles 45, 47
and 48 (art. 45, art. 47, art. 48). Both sought a decision as
to whether the facts of the case disclosed a breach by the respondent
State of its obligations under Article 6 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with Rule 33 para. 3(d)
of the Rules of Court, the applicant stated that he wished to take
part in the proceedings pending before the Court and designated the
lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr J. Pinheiro Farinha, the elected judge of Portuguese nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3(b)). On 30 January 1988, in the
presence of the Registrar, the President drew by lot the names of the
other five members, namely Mr G. Lagergren, Mr F. Gölcüklü,
Sir Vincent Evans, Mr R. Macdonald and Mr J. A. Carrillo Salcedo
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently, Mr N. Valticos, substitute judge, replaced Mr Lagergren,
who had resigned and whose successor at the Court had taken up her
duties before the hearing (Rules 2 para. 3 and 22 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of the
Government, the Delegate of the Commission and the applicant's lawyer
on the need for a written procedure (Rule 37 para. 1). In accordance with
the order made in consequence on 11 February 1988, the registry
received the Government's memorial on 27 April 1988 and the
applicant's claims under Article 50 (art. 50) of the Convention
on 17 May.
In addition, on 25 March 1988, the Commission submitted documents
which, on the President's instructions, the registry had requested.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 17 May 1988 that
the oral proceedings should open on 21 June 1988 (Rule 38).
6. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
(a) for the Government
Mr I. Cabral Barreto,
Deputy Principal Public Prosecutor of the
Republic, Agent,
Ms Marta Santos Pais, of the Office of
the Principal Public Prosecutor of the
Republic, Counsel;
(b) for the Commission
Mr J.J. Campinos, Delegate;
(c) for the applicant (who was also present)
Mrs N. Neves Anacleto, Counsel.
The Court heard addresses by Mr Cabral Barreto for the Government, by
Mr Campinos for the Commission and by Mrs Neves Anacleto for the
applicant, as well as their replies to its questions. At the hearing
the lawyers representing the Government and the applicant produced
various documents.
7. On 4 August, Mrs Neves Anacleto communicated to the registry her
client's claims in respect of lawyer's fees. The Government submitted
their observations in this matter on 9 September 1988.
AS TO THE FACTS
8. Mr José Goncalves Martins Moreira, a Portuguese national born in
1929, is a bank employee and resides at Loures (Portugal).
On 12 November 1975, he was a passenger in a car driven by
Mr Virgilio da Silva Pontes who was the owner of the vehicle. Near
Evora their car was in collision with a vehicle owned by
Mr Antonio dos Reis and driven by Mr Francisco Techana.
The applicant was injured in the accident and remained in hospital
until 14 May 1976. In August 1976 and August 1977 he underwent
surgery in London. He now suffers from a 25% permanent disability.
9. The State Counsel's department at the Evora Court of First
Instance was notified of the accident by the local police and
instituted criminal proceedings against the two drivers for
unintentionally causing physical injury. The file on the case was
closed in 1976 under an amnesty provided for in a legislative decree.
1. Proceedings in the Court of First Instance
10. On 20 December 1977, Mr Martins Moreira and Mr Pontes ("the
plaintiffs") instituted civil proceedings in the Evora Court of First
Instance against Mr Francisco Techana, Mr Antonio dos Reis, the
Gestetner company, on whose behalf the journey was undertaken, and the
insurance company "Império" ("the defendants"). The latter company's
liability was contractually limited to 200,000 escudos. The applicant
claimed damages of 1,393,737.80 escudos, and the sums to be determined
in the enforcement proceedings (liquidação em execução de sentença) in
respect of any future expenses resulting from the collision.
In accordance with Article 68 of the Road Traffic Code, the action
fell to be dealt with under the summary procedure, which entails the
reduction of certain time-limits (Articles 783 to 792 of the Code of
Civil Procedure; see the Guincho judgment of 10 July 1984, Series A
no. 81, p. 8, para. 10).
(a) Preliminary proceedings
11. On 13 January 1978, the court issued writs summoning the
defendants; requests for the service of writs (cartas precatórias)
were required for those who did not reside in Evora.
The insurance company "Império" filed its defence submissions
(contestação) on 9 February 1978. The other defendants did so on
14 March.
In addition, the Gestetner company lodged a preliminary objection. It
contended that it lacked the capacity to be a defendant because it had
not had "effective control of the vehicle which caused the accident"
within the meaning of Article 503(1) of the Civil Code. The plaintiffs
submitted their observations on this objection within the five-day
period accorded to them pursuant to Article 785 of the Code of Civil
Procedure.
The insurance company, Império, submitted an interlocutory application
seeking leave for the intervention (intervençao principal) of the
Evora Civil Hospital, the Santa Maria Hospital of Lisbon and the
insurance company "Comércio e Indústria".
12. The court acceded to this request on 31 March 1978 and
subsequently invited the interveners to put forward their claims.
On 27 April, the court gave the State Counsel until 7 May to submit the
observations of the intervening hospitals. It later extended this
time-limit by three months, pursuant to Article 486(3) of the Code of
Civil Procedure. Owing to the judicial vacation, this new time-limit
did not in fact expire until 1 October 1978.
13. Upon the conclusion of the written stage of the proceedings,
the court decided on 6 November 1978 to hold within ten days
(Article 508(1) of the Code of Civil Procedure) a preliminary hearing
with a view, inter alia, to examining the preliminary objection raised
by the Gestetner company.
On 21 December, the court granted legal aid to the plaintiffs, but
refused to accord it to Mr Techana and Mr dos Reis.
14. On 18 January 1979 the registry transmitted the file to the
court which delivered a preliminary decision (despacho saneador)
on 3 March. In this decision, which was 35 pages long, the court
dismissed the objection and drew up a list setting out the uncontested
facts (especificação) and the facts to be clarified at the hearing
(questionário). There remained 133 facts which were yet to be
established (quesitos). Moreover, the court observed that its delay
in giving a ruling (which exceeded the 10 days laid down in
Article 787 of the Code of Civil Procedure) was due to an excessively
heavy workload and the complexity of the objection examined.
15. Mr Techana and Mr dos Reis, together with the Gestetner company,
contested the above-mentioned list by means of an objection
(reclamação - Article 511(2)). The plaintiffs submitted their reply
on 17 April 1979. On 19 April, the registry transmitted the file to
the court which, by an order of 26 May, allowed in part the objection
of the first two defendants, but dismissed that of the Gestetner
company. On 6 June, Gestetner filed appeals against this decision and
the preliminary decision of 3 March 1979 for transmission to the Evora
Court of Appeal (tribunal de relação).
The judge of the Evora Court of First Instance received the two
appeals on 8 June. On 6 July, he decided that they should not be
communicated to the Court of Appeal until any appeal in respect of the
decision on the merits of the case had been lodged.
(b) Investigation proceedings
16. The parties were then invited to submit their lists of witnesses
and any other evidence. On 11 October 1979, the plaintiffs asked the
court inter alia to order an expert medical opinion in respect of a
number of facts or questions requiring clarification at the hearing.
The medical examination was to take place at the Lisbon Institute of
Forensic Medicine ("the Institute") in accordance with Article 600(2)
and (3) of the Code of Civil Procedure. Under the terms of these
provisions:
"2. Within the jurisdictions of Lisbon, Oporto and Coimbra, forensic
medical examinations, and other examinations which they are
particularly qualified to carry out, shall be undertaken by the
institutes of forensic medicine. Other examinations requiring
specific knowledge in a specialist medical field or requiring research
to be carried out by laboratories or other specialised institutions
shall be effected in an official establishment by the professors or
technical assistants of such establishments.
3. The above provision shall apply to all the other jurisdictions
where the articles or persons to be examined may without inconvenience
be transported to the institute or establishment in question. The
examination shall be conducted in Lisbon, Oporto or Coimbra, depending
on the court of appeal within whose jurisdiction the competent court
is situated."
17. On 31 October 1979, the registry transmitted the file to the
court, which finally allowed the request on 13 February 1980. In
order to explain this delay (which exceeded the five-day period
provided for in Article 159(2) of the Code), the court cited its
excessive workload. It also asked the defendants to indicate to it
within five days on which of the facts contained in the questionário
the medical experts were to give an opinion.
The Gestetner company was notified of this order on 28 February and
supplied the information requested on 7 March 1980.
18. It was not until 29 April 1980 that the court, which had received
the file from the registry on 12 March and which claimed an excessive
workload, ordered the Lisbon Medical Faculty to fix the date and time
at which a medical specialist in orthopaedics and traumatology could
examine the plaintiffs.
On 14 May, the President of the Council of the Lisbon Medical Faculty
informed the court that orthopaedic expert examinations had been
suspended as no specialists were available.
19. On 23 May, the court ordered that the plaintiffs' medical
examination be carried out by the Lisbon Civil Hospital. However,
that hospital's orthopaedic department informed the court on
20 June 1980 that it could not carry out the examination requested
because the persons concerned had never attended the hospital in
question and its workload was very heavy.
20. On 26 June 1980 the court received the file from the registry
and, on 3 July, it ordered that the medical examinations should be
carried out at the Institute. It invited the Institute's Director to
set a date for these examinations and indicated that they should be
concluded within a month. The court explained, in addition, why it had
not acceded earlier to the plaintiffs' request that the examinations
be effected at the Institute: as far as it was aware, this
establishment did not have any orthopaedic specialists. In view of
the lack of progress in the proceedings, however, it altered its
position. At the same time, it informed the Head of the Private
Office of the Minister of Justice of the situation and asked him to
indicate in which establishment it would be possible to carry out
medical examinations in orthopaedics and traumatology.
On 17 July, the Assistant Director of the Institute informed the court
that the plaintiffs would be examined on 6 October 1980. On 23 July,
the court ordered the plaintiffs to attend the Institute on this date.
21. On the appointed day the plaintiffs were examined by two doctors
of the Institute who drew up a report for the court. In this report
they concluded that the plaintiffs should undergo a further
examination following the production of a number of documents
concerning their state of health, inter alia: the reports of the
hospitals which they had attended and the Portuguese translation of
the reports of an English specialist who had treated them in London in
1977. Furthermore and in accordance with Article 600(2) of the Code
of Civil Procedure, the plaintiffs were to undergo an examination
effected in an appropriate public establishment by orthopaedic experts
who would furnish replies to the questions set out in the preliminary
decision of 3 March 1979.
This report reached the court on 15 October 1980 and was communicated
to Mr Pontes and Mr Martins Moreira the following day.
22. On 20 October, the plaintiffs requested the court to obtain
certain documents directly from the hospitals concerned, to accord
them a period of thirty days within which to lodge others (including
the Portuguese translation of the medical reports written in English)
and to ask the Institute to indicate which public establishment they
should apply to for the orthopaedic examinations.
The registry transmitted the file to the court on 28 October 1980.
23. On 5 January 1981, the plaintiffs submitted a new application
requesting that the court itself appoint as medical experts
orthopaedic specialists practising in Evora. They stated that they
had not realised that the Institute was not in a position to carry out
such examinations or that its role was merely to co-ordinate
information supplied by the plaintiffs or requested from other
hospitals. Had they done so, they would not have made the initial
request. They added that they hoped to be examined more quickly in
Evora than in Lisbon in view of the long waiting lists for hospitals
in the capital.
24. The court allowed this application on 23 February. It ordered
the hospitals concerned to produce the documents requested by the
Institute and asked the Evora Civil Hospital to set a date for the
plaintiffs' examination. However, the administrative authorities of
this establishment informed the court on 24 March that it should
itself appoint the experts, since the hospital was not competent to
carry out medico-legal expert examinations.
Accordingly, on 27 March, the court asked the hospital to communicate
to it the list of orthopaedic specialists practising there. It
received this on 7 April.
25. On 21 April 1981, the registry transmitted the file to the court
which, on the same day, decided that it would appoint the experts
on 4 May. On this date, in the presence of all the parties to the
proceedings, the court appointed three experts, one proposed by the
plaintiffs, another by the defendants and a third chosen by the court.
On 6 May, the court summoned the experts to appear on 1 June in order
to take their oaths. They duly did so and were immediately
given 15 days within which to complete their task.
26. Also on 1 June, the plaintiffs lodged with the court registry
the Portuguese translation of the reports drawn up by their English
doctor.
27. On 15 June 1981, the experts informed the court that they were in
a position to reply to the questions which they had been asked to
consider. The same day the court ordered that the experts should
appear before it on 23 June.
In their replies, the experts concluded unanimously that the applicant
suffered from a 25% permanent disability and Mr Pontes a 50% permanent
disability, that in both cases their state of health was stable, and
that no deterioration was expected or further treatment likely to be
required.
28. On 9 July 1981, the court took note of Mr Pontes's failure to
supply the Portuguese translation of a medical report requested by the
Institute. On 20 July, it asked the Institute to set a date for a
further medical examination of the plaintiffs. On 1 September, the
Institute announced that the examination would be carried out
on 6 October 1981.
On this date, the two plaintiffs were examined with reference to the
documents produced. The Institute drew up a final report regarding
Mr Martins Moreira. As far as Mr Pontes was concerned, it again asked
for certain documents concerning his state of health, in particular
Portuguese translations of two reports in English of August and
September 1981. Mr Pontes forwarded these documents to the court
on 9 November.
On 18 November, the court asked the Institute to examine Mr Pontes
again. On 4 December, this examination was fixed for 25 January 1982.
The results were communicated to the court on 5 February 1982.
(c) The trial hearing
29. On 26 March 1982, the court decided that the oral proceedings
should open on 12 May. However, the insurance companies Comércio e
Indústria, an intervener, and Império, a defendant, failed to appear
and the proceedings were adjourned until 1 July.
The hearing finally took place on 1, 2 and 5 July 1982.
Mr Martins Moreira increased the amount of damages sought from the
1,393,737.80 escudos originally claimed (see paragraph 10 above) to
2,787,479 escudos, in order to take account of inflation.
30. On 15 July at a public hearing, the court set out the facts of
the case as found. At the same hearing the parties also presented
argument regarding questions of law.
31. On 1 October 1982, it declared the action brought by
Mr Martins Moreira and Mr Pontes well founded in part. It ordered the
defendants jointly to pay to the applicant damages of 732,000 escudos.
However, the question of the reimbursement of the costs incurred by
the plaintiffs as a result of the journeys which they had to make to
receive treatment following the accident was reserved for the
subsequent enforcement proceedings, in accordance with Article 661(2)
of the Code of Civil Procedure.
2. Proceedings in the Evora Court of Appeal
32. On 13 October 1982, Mr Martins Moreira lodged an appeal against
this judgment in the Evora Court of Appeal. He did not contest the
facts established at first instance, but complained that the amount of
compensation awarded to him was insufficient.
His appeal and that of the Gestetner company were declared admissible
by decision of 19 October, which was notified to the interested
parties on 16 November.
After the costs and expenses of the proceedings had been calculated
and paid, the registry of the Evora court transmitted the file to the
Court of Appeal on 23 June 1983. The appeal was registered on 30 June
and the proceedings followed their normal course.
In accordance with its order of 14 November 1983, the appeal court
received the applicant's pleadings on 20 December 1983, those of
Gestetner on 25 January 1984 and those of Império on 24 April 1984.
Comércio e Indústria, the Evora Hospital and the Santa Maria Hospital
of Lisbon did not submit pleadings, but the proceedings could not
continue until 30 July 1984, when the last time-limit fixed for
submission of their pleadings expired.
33. After having obtained the visas (vistos) of those of its members
called upon to consider the case, by judgment of 30 May 1985 the Court
of Appeal increased Mr Martins Moreira's damages from 732,000 to
1,032,000 escudos.
3. Proceedings in the Supreme Court (Supremo Tribunal de Justiça)
34. The defendant company Gestetner appealed to the Supreme Court on
13 June 1985. For their part, the plaintiffs lodged a "secondary"
appeal (recurso subordinado) with the same court on 11 July.
After the completion of formalities, the file reached the registry on
17 October 1985. On 15 November, the judge-rapporteur fixed a
time-limit for the submission of the parties' pleadings.
On 6 January 1986, he received those of the Gestetner company and
on 3 February the plaintiffs'. The latter argued in particular that
the damages awarded in respect of non-pecuniary injury were too small
and that they should in addition receive an amount, to be determined
in the course of subsequent enforcement proceedings, in respect of
future damage arising from their incapacity to work.
The time-limits for submission of the interveners' observations
expired on 9 May 1986. On 9 June, Gestetner submitted a
counter-pleading. The file was then communicated to the State Counsel
for his views, and to the deputy judges for their consideration.
35. The Supreme Court delivered its judgment on 5 February 1987. It
took into account the plaintiffs' permanent disability resulting from
the accident and, with regard to this aspect of their appeal, found in
their favour, awarding them an additional amount, to be determined in
the enforcement proceedings, in respect of damage which it had been
impossible to calculate at first instance. For the rest, it upheld
the Court of Appeal's decision. The judgment was notified to the
applicant on 9 February.
4. The enforcement proceedings
36. On 28 October 1987, Mr Pontes and the applicant asked the Evora
Court of First Instance to order the payment of the part of the
damages awarded to them by the Court of Appeal which had already been
calculated. They listed the attachable goods of the Gestetner
company. However, the attachment, for which a writ was issued for
service in Lisbon, proved impossible since, on 18 January 1988, the
competent court found that the company was subject to proceedings
which subsequently resulted, on 25 March 1988, in a declaration of
insolvency. For its part the Império company paid into court the sum
of 184,334 escudos because of the difficulties encountered in dividing
this amount between the applicant, Mr Pontes and the Comércio e
Indústria company.
The enforcement proceedings are still pending since the plaintiffs
have not yet indicated other attachable property. However, the court
registry has drawn up a statement of the costs relating thereto and
the parties concerned have had to pay them.
For this reason the applicant has not yet requested the award of the
damages which have still to be calculated.
5. The applicant's complaints concerning the length of the
proceedings
37. On 26 January 1981, before his medical examinations were
terminated (see paragraph 23 above), the applicant complained to the
ombudsman (Provedor de Justiça) about the length of the proceedings.
The latter replied to him in March 1981 that he had communicated the
substance of his complaint to the Supreme Council of the Judiciary
(Conselho Superior da Magistratura) which had sent to him a memorandum
from the Evora court setting out the problems, legal and otherwise,
raised by the case. The ombudsman discontinued his investigation of
the complaint on 20 July 1981.
38. On 3 March 1983, while he was waiting for the transmission of
the file from the Evora Court of First Instance to the Court of Appeal
(see paragraph 32 above), Mr Martins Moreira again applied to the
ombudsman and asked him to intervene.
On 7 April, the ombudsman informed the applicant that he had notified
the Supreme Council of the Judiciary of the situation.
On 28 December 1983, the ombudsman again wrote to the applicant to
inform him of the result of the representations which he had made to
the Supreme Council of the Judiciary and the Ministry of Justice. It
appeared that the delay in the proceedings was due to the time
required to establish a statement of the costs of one of the experts
and to the lack of staff at the Evora Court of First Instance.
Consequently, the ombudsman decided not to pursue the complaint.
PROCEEDINGS BEFORE THE COMMISSION
39. In his application of 24 July 1984 to the Commission
(no. 11371/85), Mr Martins Moreira complained of the length of the
civil proceedings which he had instituted on 20 December 1977 in the
Evora Court of First Instance. He considered it to be in breach of
Article 6 para. 1 (art. 6-1) of the Convention.
40. The Commission declared the application admissible on
14 October 1986. In its report of 15 October 1987 (Article 31)
(art. 31), it expressed the unanimous opinion that there had been a
violation of Article 6 para. 1 (art. 6-1). The full text of its opinion
is annexed to this judgment.
FINAL SUBMISSIONS OF THE GOVERNMENT
41. At the hearing on 21 June 1988, the Government confirmed in
substance the submission made in their memorial, requesting the Court
"to find that this case discloses no violation of Article 6 para. 1
(art. 6-1) of the Convention".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
42. According to the applicant, the time taken to hear the action
for damages brought by himself and Mr Pontes in the Evora Court of
First Instance was not "reasonable" within the meaning of
Article 6 para. 1 (art. 6-1) of the Convention, according to which:
"In the determination of his civil rights and obligations ... everyone
is entitled to a ... hearing within a reasonable time by a ...
tribunal ..."
The Commission agreed in substance with this view, which was contested
by the Government.
A. Period to be taken into consideration
43. In this case the period to be considered did not begin to run
when the action was first brought before the competent court
(20 December 1977, see paragraph 10 above), but only when,
on 9 November 1978, the Portuguese declaration accepting the right of
individual petition took effect. However, in order to determine
whether the time which elapsed following this date was reasonable, it
is necessary to take account of the stage which the proceedings had
reached at that point (see, most recently, the Milasi judgment
of 25 June 1987, Series A no. 119, p. 45, para. 14).
44. In the view of the Government and the Commission, the period
in question ceased to run on 9 February 1987, when the judgment
delivered four days earlier by the Supreme Court was notified to the
applicant (see paragraph 35 above).
The Court, on the other hand, agrees with Mr Martins Moreira that the
relevant period should also extend to the subsequent enforcement
proceedings (see paragraph 36 above and the Guincho judgment of
10 July 1984, Series A no. 81, p. 13, para. 29). These proceedings
constituted a second stage, which had to be set in motion by the
plaintiffs. They did not begin until 28 October 1987, eight months
after the judgment, and only concerned the part of the damages which
had already been calculated. They are as yet uncompleted as a result,
inter alia, of the insolvency of the defendant company Gestetner
(see paragraph 36 above). The first stage, which covered the period
from 9 November 1978 to 9 February 1987, in itself lasted eight years
and three months.
B. Reasonableness of the length of the proceedings
45. The reasonableness of the length of proceedings must be
assessed in the light of the particular circumstances of the case and
having regard to the criteria laid down in the Court's case-law (see,
most recently, the Baraona judgment of 8 July 1987, Series A no. 122,
p. 19, para. 47).
46. As the Government have stressed, under Article 264(1) of the
Portuguese Code of Civil Procedure it is for the parties to take the
initiative with regard to the progress of proceedings. However, this
does not absolve the courts from ensuring compliance with the
requirement of Article 6 (art. 6) concerning reasonable time (see, most
recently, the Baraona judgment cited above, p. 19, para. 48). Moreover,
Article 266 of the Code requires them to take appropriate measures to
remove obstacles liable to prevent the trial from progressing
speedily. In addition, under Article 68 of the Road Traffic Code, the
action brought by the applicant fell to be dealt with under the
summary procedure, which entails the reduction of various time-limits
(see paragraph 10 above).
1. Complexity of the case
47. The Government contended that the case was one of great
complexity. There were two plaintiffs and several defendants and
interveners, each with successive time-limits for the submission of
their various pleadings. Furthermore, the file comprised no less than
1,800 pages and the dispute was far from easy to resolve.
Mr Martins Moreira, on the other hand, stressed that there was nothing
unusual about an action for damages in respect of injuries resulting
from a road accident.
48. The Court shares the Commission's view that the case was not
in itself a complex one.
It is undoubtedly true that some of the factors listed by the
Government had an effect on the progress of the proceedings and that
difficulties were encountered in obtaining an expert medical opinion
(see paragraphs 55-57 below), but these were mere procedural
difficulties which cannot justify the excessive length of the
proceedings. In the end, the experts appointed by the court took only
fifteen days to complete their task (see paragraphs 25-27 above).
2. Conduct of the applicant
49. The Government relied on the fact that Mr Martins Moreira had
brought his action jointly with Mr Pontes and that, with the latter,
he had subsequently asked to be examined by the Lisbon Institute of
Forensic Medicine (see paragraphs 10 and 16 above).
However, the applicant's behaviour appears natural and understandable
in both respects. With regard to the first point, it should be noted
that the liability of the insurance company Império was limited by
contract to 200,000 escudos for all the damage sustained (see
paragraph 10 above) and that the introduction of a single action made
it possible to avoid two separate sets of proceedings which would have
given rise to unnecessary complications.
As far as the Government's second point is concerned, the Court
observes that Article 600(2) of the Code of Civil Procedure
(see paragraph 16 above) refers expressly to institutes of forensic
medicine. It follows that the plaintiffs and their lawyers were
entitled to presume that these establishments possessed the necessary
facilities. They could hardly be expected to verify it for
themselves.
50. On the other hand, the Court, like the Commission, recognises
that the applicant could have assisted the doctors of the Institute in
their task by providing them with the necessary documents more
expeditiously. In October 1980, they had requested various clinical
records and the Portuguese translation of the reports of an English
specialist (see paragraph 21 above). The Evora court obtained the
clinical reports through official channels as the plaintiffs had
requested it to do on 20 October 1980 (see paragraph 22 above), but
the applicant did not produce the translations until 1 June 1981 (see
paragraph 26 above). This is a fact which cannot be attributed to the
respondent State and which must be taken into account (see, inter
alia, the Lechner and Hess judgment of 23 April 1987, Series A
no. 118, pp. 18-19, para. 49). Nevertheless, ultimately, this did not
prolong the proceedings unduly. The court did not appoint the
orthopaedic experts until 4 May 1981 and they did not take their oaths
before it until 1 June. On this date, it gave them 15 days to complete
their task, and they did so within that period (see paragraphs 25 and
27 above).
51. For the rest, it is clear from the file that the applicant
took steps to expedite the proceedings. In January 1981 and
March 1983, he wrote to the ombudsman, who referred his complaint to
the Supreme Council of the Judiciary, communicating to it the
applicant's letters (see paragraphs 37 and 38 above). In view of the
delay in obtaining the expert opinion, the applicant also made a fresh
application to the Evora court, complaining of the Institute's
inactivity and proposing a solution (see paragraph 23 above).
3. Conduct of the competent authorities
52. The applicant and the Commission listed various delays
attributable to the Portuguese judicial authorities and in particular
to the Evora Court of First Instance.
It is an established fact that this court took more than three months
to give the preliminary decision (despacho saneador) after the hearing
held for this purpose. Such a lapse of time appears excessive
notwithstanding the complication introduced by the Gestetner company's
preliminary objection (see paragraphs 11-14 above). In addition, the
court did not accede to Mr Martins Moreira's and Mr Pontes's request
for an expert medical opinion until 13 February 1980 and to their
request for an orthopaedic examination until 23 February 1981. The
first request had been made on 11 October 1979 (see paragraphs 16-17
above), while the second - which followed a report from the Institute -
was submitted on 20 October 1980 (see paragraphs 21-24 above).
These measures were, moreover, purely administrative.
Finally, after the applicant had lodged an appeal on 13 October 1982,
the registry of the Evora court waited until 23 June 1983 to transmit
the file to the registry of the appeal court. In the intervening
period, it merely verified that various pleadings were included in the
file and drew up a statement of the costs and expenses relating to the
first instance proceedings (see paragraph 32 above).
53. At the time the court cited an excessive workload
(see paragraphs 17-18 above).
In fact, Mr Martins Moreira has himself indicated that on taking up
his post in Evora, the judge to whom the case was assigned found more
than 1,000 cases pending and also had to carry out his duties in five
other courts in the surrounding district.
This state of affairs had become a structural problem. Accordingly, it
required remedial action (see, inter alia, the Guincho judgment cited
above, Series A no. 81, p. 17, para. 40). The competent authorities do
not appear to have taken effective measures in this respect.
54. There were also delays in the proceedings in the appeal court
and the Supreme Court, in particular during the examination of the
file by the judges (see paragraphs 33-35 above).
In the Government's view, a comparison with the duration of
proceedings at this level in the other member States of the Council of
Europe would undoubtedly be favourable to Portugal.
An argument of this nature, which is moreover not supported by precise
statistics, is unconvincing. It could lead to the acceptance of
unsatisfactory practices if they are sufficiently general, whereas,
according to the case-law of the Court, the circumstances of each case
must be taken into account (see paragraph 45 above) and, in any event,
compliance with Article 6 para. 1 (art. 6-1) of the Convention must
be ensured.
55. Although the various delays noted above account for more than
one and a half years altogether, they do not in themselves explain the
length of the proceedings. This was due, above all, - as all those
appearing before the Court have acknowledged - to the difficulties
encountered in obtaining an examination of the plaintiffs by
orthopaedic experts.
56. In this respect, the Evora Court of First Instance was not
lacking in diligence. In particular it tried to find alternative
solutions, but without success.
The medical examination which the plaintiffs had requested on
11 October 1979 (see paragraph 16 above) was not completed until
October 1981, for Mr Martins Moreira, and February 1982, for Mr Pontes
(see paragraph 28 above). It therefore took two years for the
applicant and a little more for Mr Pontes. At first sight these
lapses of time appear unreasonable; they require close scrutiny.
57. The Court notes that the Portuguese court devoted a large
part of the period in question to administrative steps. As it was
aware that the Institute did not have any orthopaedic experts, the
court turned first to the Lisbon Medical Faculty and then the Lisbon
Civil Hospital. Only the failure of these moves, as a result either of
the lack of specialists or of an excessive workload, led it to order,
on 3 July 1980, that the examinations should take place at the
Institute (see paragraphs 18-20 above). Thus it took almost nine
months to make the necessary arrangements.
The examinations were conducted on 6 October 1980 and the doctors
communicated their conclusions to the court nine days later. They did
not, however, draw up definitive reports at this stage. Since they
were not orthopaedic specialists, they recommended that the plaintiffs
be asked to supply them with various documents and to undergo a
further examination in an appropriate public establishment (see
paragraph 21 above). The court did not succeed in appointing experts
to carry out this task until 4 May 1981 (see paragraphs 24 and 25
above).
58. It took the experts only two weeks to form their opinion.
After having taken the oath on 1 June 1981, on 15 June the experts
notified the court that they were in a position to reply to its
questions, which they did on 23 June (see paragraphs 25 and 27 above).
The Institute's doctors again examined the plaintiffs on
6 October 1981. They immediately drew up a final report concerning
Mr Martins Moreira on the basis of the orthopaedic examination and
other clinical documents produced, but for Mr Pontes it proved
necessary to wait until 5 February 1982. He had undergone further
treatment in London in August and September 1981 and the Portuguese
translation of the relevant documents was not available
until 9 November (see paragraph 28 above).
The Court finds it surprising that it took two years to carry out
three medical examinations, the longest of which required only fifteen
days. Only very exceptional circumstances could justify such a delay.
59. The Government argued that it was in any event impossible to
determine the consequences of the accident with the necessary
scientific precision before knowing the evolution of the plaintiffs'
state of health.
This argument is not without force, but it cannot support the
inference, drawn therefrom by the Government, that the delays involved
in the present case were justified. Acceptance of the Government's
view would mean that those whose need is greatest precisely because of
the particular gravity of their injuries would be deprived of their
right to obtain justice within a reasonable time, within the meaning
of Article 6 (art. 6). Moreover, the experts appointed by the Evora Court
concluded as early as 23 June 1981 that the state of health of
Mr Martins Moreira and Mr Pontes had stabilised (see paragraph 27
above).
60. Again in the Government's view, only the conduct of
the judicial authorities in question could incur the international
liability of Portugal in this matter and not any errors on the part of
the legislature, the executive, or organs or persons outside the State
structure, in this instance the Institute, which had no hierarchical
relationship with the courts.
This argument runs counter to the established case-law of the Court.
In ratifying the Convention, the Portuguese State undertook the
obligation to respect it and it must, in particular, ensure that the
Convention is complied with by its different authorities (see, amongst
other authorities and mutatis mutandis, the Guincho judgment cited
above, Series A no. 81, p. 16, para. 38).
In this instance, the various institutions which were prevented through
inadequate facilities or an excessive workload from complying with the
requests of the Evora court were all public establishments. The fact
that they were not judicial in character is immaterial in this
respect.
This is true in particular of the Lisbon Institute of Forensic
Medicine, whose lack of facilities gave rise to difficulties. Under
Article 600(2) of the Code of Civil Procedure, institutes of this type
are to carry out forensic medical examinations. Moreover, they were
set up for this purpose and come under the administrative authority of
the Ministry of Justice. Accordingly, the Portuguese State is under a
duty to provide them with appropriate means in relation to the
objectives pursued so as to enable them to comply with the
requirements of Article 6 para. 1 (art. 6-1) (see, mutatis mutandis,
the Bouamar judgment of 29 February 1988, Series A no. 129,
p. 22, para. 52).
In any event, the examination in question was to be effected in the
context of judicial proceedings supervised by the court, which
remained responsible for ensuring the speedy conduct of the trial
(see, inter alia, the Capuano judgment of 25 June 1987, Series A
no. 119, p. 13, para. 30).
4. Conclusion
61. Having regard to all the circumstances of the case, the Court
finds that the excessive length of the proceedings was essentially due
to the conduct of the competent authorities. There has therefore been
a violation of Article 6 para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
62. Article 50 (art. 50) of the Convention is worded as follows:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
Mr Martins Moreira sought financial reparation in respect of pecuniary
and non-pecuniary damage, and the reimbursement of costs and expenses
incurred in Portugal and before the Convention institutions.
The Government denied that the amounts claimed had been actually and
necessarily incurred and that they were reasonable as to quantum. For
its part, the Commission had no views on this point. It did however
consider that the applicant was in principle entitled to compensation,
at least in respect of non-material damage.
A. Damage
63. In the applicant's submission, the excessive length of the
proceedings prevented him from obtaining payment of even a part of the
1,032,000 escudos damages awarded to him by the Evora Court of Appeal
(see paragraph 33 above). The insurance company Império's liability
was limited to 200,000 escudos (see paragraph 10 above), to be divided
between the company Comércio e Indústria, an intervener, and the
plaintiffs in the main proceedings, Mr Pontes and Mr Martins Moreira
(see paragraph 36 above). For the rest, the applicant maintained that
the insolvency of the defendant company, Gestetner, had prevented him
from recovering his debt (see paragraph 36 above) and he may well not
receive anything in view of the extent of the company's liabilities.
This is said to be the case, in particular, with regard to the costs
incurred by him in respect of medical treatment. The competent court
assessed these costs at 532,000 escudos. The applicant stated that, in
order to meet these expenses, he had contracted loans the interest on
which was already approximately 200,000 escudos.
Mr Martins Moreira claimed in addition that he had been unable to
undergo a further operation in London necessitated by his present
state of health because he had not received the damages awarded. He
maintained that this state of affairs caused him anxiety justifying
the award of 2,000,000 escudos for non-pecuniary damage.
64. The Government contended that application of the criteria laid
down in its case-law would lead to a very different solution to that
put forward by the applicant.
65. The Court would point out that the applicant first sought
unsuccessfully to persuade the Império company and the Gestetner
company to pay to him of their own accord the part of his claim which
had already been calculated and then requested the enforcement of the
decision delivered in his favour and the attachment of Gestetner's
property (see paragraph 36 above). However, on 18 January 1988 the
Lisbon court found that that company was the subject of proceedings,
which subsequently resulted, on 25 March 1988, in a declaration of
insolvency.
It is true that this development was subsequent to the Supreme Court's
judgment of 5 February 1987 (see paragraph 35 above). However, and
even though it is not certain that the applicant would have recovered
the entirety of his debt if the main proceedings had been terminated
earlier, it is, in the Court's view, reasonable to conclude that, as a
result of the long delay, in breach of Article 6 para. 1 (art. 6-1),
found by the Court in this judgment, he suffered a loss of
opportunities which warrants an award of just satisfaction in respect
of pecuniary damage (see, amongst other authorities and mutatis
mutandis, the Lechner and Hess judgment of 23 April 1987, Series A
no. 118, p. 22, para. 64).
66. Mr Martins Moreira also clearly suffered non-pecuniary damage.
He has lived, and still lives, in a state of uncertainty and anxiety
with regard to the outcome of the proceedings in question and the
implications for his financial situation and his health.
67. The various components of this damage cannot be calculated
precisely. The Court has assessed them as a whole and, as required by
Article 50 (art. 50), on an equitable basis. It finds that the
applicant should be awarded compensation of 2,000,000 escudos.
B. Costs and expenses
68. Mr Martins Moreira also claimed the reimbursement of
45,573 escudos which he had had to pay in Portugal in respect of the
costs of the proceedings, despite the grant of legal aid (see
paragraphs 13, 32 and 36 above), and of 12,000 escudos in respect of
expenses incurred in travelling to Evora.
For the proceedings conducted before the Convention institutions,
which granted him legal aid, he claimed 12,086 escudos for
miscellaneous expenses and 400,000 escudos in respect of the fees of
the two lawyers who represented him in turn, Mr Rodrigues and
Mrs Neves Anacleto.
69. The Government urged the Court to apply the principles laid
down in its case-law. In their view, these principles would militate
in favour of a different solution to that proposed by the applicant.
In particular, they considered that the participation of two lawyers
was superfluous.
70. The Court observes that the applicant is entitled to recover
the costs incurred by him in Portugal inasmuch as the length of the
proceedings, which was attributable essentially to the conduct of the
competent authorities (see paragraph 61 above), involved him in
additional expenses and inasmuch as he attempted unsuccessfully to
shorten the proceedings by taking various steps (see paragraphs 37-38
above). He is also entitled to the reimbursement of the expenses
incurred in bringing the case to Strasbourg. The Court assesses the
total amount recoverable under this head at 35,000 escudos.
Mrs Neves Anacleto took part in the hearing in Strasbourg on
21 June 1988 at the request of Mr Rodrigues who was himself unable to
attend. It was necessary in the interests of the proper administration
of justice to have a new lawyer present and she had to familiarise
herself with the case prior to the hearing. Moreover,
the 400,000 escudos claimed seems reasonable.
The applicant is therefore entitled to a total of 435,000 escudos by
way of reimbursement of costs and expenses, less the 5,180 French
francs paid by the Council of Europe as legal aid.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 para. 1
(art. 6-1);
2. Holds that the respondent State shall pay to the applicant
2,000,000 (two million) escudos in respect of damage and 435,000
(four hundred and thirty-five thousand) escudos in respect of costs
and expenses, less 5,180 (five thousand one hundred and eighty) French
francs to be converted into escudos at the rate applicable on the day
of the delivery of the judgment;
3. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 26 October 1988.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar