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You are here: BAILII >> Databases >> European Court of Human Rights >> SILVA PONTES v. PORTUGAL - 14940/89 [1994] ECHR 12 (23 March 1994) URL: http://www.bailii.org/eu/cases/ECHR/1994/12.html Cite as: [1994] ECHR 12, 18 EHRR 156, (1994) 18 EHRR 156

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In the case of Silva Pontes v. Portugal*,

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 A. Spielmann,

Mr S.K. Martens,

Mrs E. Palm,

Mr A.N. Loizou,

Mr J.M. Morenilla,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

Mr J. Makarczyk,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 28 October 1993 and

22 February 1994,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

* Note by the Registrar: The case is numbered 6/1993/401/479. The

first number is the case's position on the list of cases referred to

the Court in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to the Court

since its creation and on the list of the corresponding originating

applications to the Commission.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") and by the Government of the

Portuguese Republic ("the Government") on 19 February and 5 April 1993

respectively, within the three-month period laid down by Article 32

para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It

originated in an application (no. 14940/89) against Portugal lodged

with the Commission under Article 25 (art. 25) by a Portuguese

national, Mr Virgílio da Silva Pontes, on 16 January 1989.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Portugal recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46); the

Government's application referred to Article 48 (art. 48). The object

of the request and the application was to obtain 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 and designated the lawyer who

would represent him (Rule 30).

3. The Chamber to be constituted included ex officio Mr M.A. Lopes

Rocha, 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 27 February 1993 Mr R. Bernhardt, the

Vice-President of the Court, drew by lot, in the presence of the

Registrar, the names of the other seven members, namely

Mr A. Spielmann, Mr S.K. Martens, Mrs E. Palm, Mr A.N. Loizou,

Mr J.M. Morenilla, Mr L. Wildhaber and Mr J. Makarczyk (Article 43

in fine of the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the Government,

the applicant's lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant

to the order made in consequence, the Registrar received the

applicant's memorial on 3 May 1993 and the Government's memorial on

17 June. On 28 June the Secretary to the Commission informed the

Registrar that the Delegate would address the Court at the hearing.

On 22 July the applicant's lawyer lodged his client's claims under

Article 50 (art. 50) of the Convention.

On 7 July 1993 the President had granted Mr Silva Pontes legal

aid (Rule 4 of the Addendum to the Rules of Court).

5. On 15 September 1993 the Commission produced the file on the

proceedings before it, as requested by the Registrar on the President's

instructions.

6. In accordance with the decision of the President - who had

given the applicant's lawyer leave to use the Portuguese language

(Rule 27 para. 3) -, the hearing took place in public in the Human

Rights Building, Strasbourg, on 25 October 1993. The Court had held

a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr A. Henriques Gaspar, Deputy Attorney-General

of the Republic, Agent,

Mr M.H. Mesquita, Professor at the

Law Faculty of Coimbra University, Counsel;

(b) for the Commission

Mr H. Danelius, Delegate;

(c) for the applicant

Mr A. Amado Rodrigues, Counsel.

The Court heard addresses by the above-mentioned

representatives and also their answers to the questions of one judge.

AS TO THE FACTS

I. The particular circumstances of the case

7. Mr Virgílio da Silva Pontes, a Portuguese national born in

1917, was at the material time a bank employee. He lives in Évora.

8. On 12 November 1975 the car he was driving, in which

Mr José Gonçalves Martins Moreira was a passenger, was in collision

with another vehicle, belonging to Mr António dos Reis and driven by

Mr Francisco Techana.

As a result of his injuries Mr Silva Pontes remained in

hospital until 31 May 1976. He underwent several operations, including

one in London in December 1978. Since the accident he has one leg 5cm

shorter than the other and suffers from a 58% permanent disability,

which has made it impossible for him to return to work.

9. The Public Prosecutor's Department at the Évora Court of First

Instance was notified of the accident by the local police and

instituted criminal proceedings against both drivers for

unintentionally causing physical injury. The file on the case was

closed in 1976 following an amnesty under a legislative decree.

1. The declaratory proceedings

(a) In the Court of First Instance

10. On 20 December 1977 Mr Silva Pontes and Mr Martins Moreira

("the plaintiffs") brought a civil action in the Évora Court of First

Instance against Mr Techana, Mr dos Reis, the Gestetner company, on

whose behalf the journey was made, and the insurance company "Imperio",

whose liability was contractually limited to 200,000 escudos, ("the

defendants"). The applicant sought compensation of 536,345 escudos,

together with various amounts to be calculated during the enforcement

proceedings (liquidação em execução de sentença) in respect of future

expenses stemming from the accident.

Pursuant to Article 68 of the Road Traffic Code, the action

fell to be heard under a summary procedure, which entailed shorter

time-limits (Articles 783 to 792 of the Code of Civil Procedure and see

the Guincho v. Portugal judgment of 10 July 1984, Series A no. 81,

p. 8, para. 10).

11. On the conclusion of the preliminary proceedings and the

hearing (for a detailed description of the proceedings see the

Martins Moreira v. Portugal judgment of 26 October 1988, Series A

no. 143, pp. 8-13, paras. 11-29), the Évora Court of First Instance

gave judgment on 1 October 1982. It declared the action brought by

Mr Silva Pontes and Mr Martins Moreira well-founded in part and ordered

the defendants, jointly and severally, to pay the applicant

compensation of 540,000 escudos - 140,000 for pecuniary damage, taking

into account inflation, and 400,000 for non-pecuniary damage.

The court reserved for the subsequent enforcement proceedings,

in accordance with Article 661 para. 2 of the Code of Civil Procedure

(see paragraph 20 below), the question of the transport costs incurred

by the plaintiffs to enable them to receive treatment after the

accident.

(b) In the Évora Court of Appeal

12. On 13 October 1982 the applicant and Mr Martins Moreira

appealed from that judgment to the Évora Court of Appeal. They did not

dispute the facts as established by the first-instance court, but they

complained that the sums awarded were inadequate.

13. Their appeals and that of the Gestetner company were declared

admissible on 19 October 1982. On 30 May 1985 the Court of Appeal

dismissed Mr Silva Pontes's appeal, whereas it increased the sum

awarded to his co-plaintiff.

(c) In the Supreme Court

14. On 13 June 1985 the defendant company, Gestetner, appealed on

points of law to the Supreme Court (Supremo Tribunal de Justiça). The

plaintiffs lodged a "secondary" appeal ("recurso subordinado") with the

same court on 11 July.

15. The Supreme Court gave judgment on 5 February 1987. Taking

into account the permanent disability from which the plaintiffs

suffered after the accident, it found in their favour on this point and

awarded them additional compensation, to be determined in the

enforcement proceedings, for the damage flowing from their reduced

capacity to work and diminished ability to move, damage which it had

not been possible to assess at first instance. Its judgment was

notified to the applicant on 9 February.

2. The enforcement proceedings

16. On 28 October 1987, since the defendants refused to make a

payment of their own accord, the applicant and Mr Martins Moreira asked

the Évora court to enforce payment of the part of the damages that had

already been calculated, "without prejudice to the remainder once the

details necessary for its calculation have been established

(Article 810 of the Code of Civil Procedure)" ("sem prejuizo de logo

que recolhidos os necessários elementos, deduzirem liquidação da

restante (art° 810° do C.P. Civil)"). They listed the attachable

assets of the Gestetner company. However, a writ issued for service

in Lisbon ordering the attachment of the goods in question proved

impossible to execute; on 18 January 1988 the court found that the

company was subject to insolvency proceedings.

17. On 23 December 1988 the applicant indicated to the judge at the

Évora court the attachable assets of Mr dos Reis and asked him to make

a formal request to the Vila Franca de Xira court for the seizure of

assets situated within its jurisdiction.

On 4 January 1989 the same judge ordered the seizure of movable

goods and a building situated within the jurisdiction of the Évora

court; this took place on 8 March and 17 March 1989. He also made the

formal request to the Vila Franca de Xira court.

18. On 30 March 1989 Mrs dos Reis, whose marriage was subject to

the rules on community of property (comunhão geral de bens), requested

the judge, in accordance with Article 825 para. 3 of the Code of Civil

Procedure (see paragraph 20 below), to order the separation of her

assets from those of her husband. She further sought to have the

proceedings stayed until the couple's property had been divided up.

19. The process of dividing up the property continued until

19 December 1989, on which date the applicant and Mr Martins Moreira

concluded an out-of-court settlement with the defendants, pursuant to

which Mr dos Reis paid to them 8,500,000 escudos as full compensation.

II. The relevant domestic law

20. A translation of the main provisions of the Code of Civil

Procedure referred to in this case is set out below:

Article 2

(Correspondence between the right and the action)

"For each right, except as provided otherwise, there is a

corresponding action whose purpose is to secure judicial

recognition of the right in question or to enforce it,

accompanied by measures to ensure the effectiveness of the

action."

Article 4

(Classification of actions according to their purpose)

"1. There are two types of actions: declaratory actions

(declarativas) and enforcement actions (executivas).

2. Declaratory actions may have as their purpose (a) a mere

assessment, (b) an order or (c) the creation of a right

(constitutivas). They seek to obtain respectively:

(a) a mere declaration as to whether a right or fact

exists;

(b) an order, presupposing or aimed at preventing the

violation of a right, for the handing over of an article or

the accomplishment of an act;

(c) the authorisation for a modification of an existing

legal situation.

3. Enforcement actions are those by which the plaintiff

seeks adequate measures to secure effective reparation for the

right infringed."

Article 661

(Limits of the action for an order)

"1. ...

2. If insufficient information is available to determine the

nature or the amount [of the reparation], the court shall make

its order in respect of a sum to be fixed in subsequent

enforcement proceedings, without prejudice to its power to

make an immediate order in respect of the part of the award

already calculated."

Article 806

(Calculation by the court)

"1. Where the damages have not been calculated and their

calculation is not merely a matter of simple arithmetic, the

plaintiff must mention in his application instituting the

enforcement proceedings the sums which he considers to be

included in the damages owed and submit a final claim for a

specific amount.

2. ..."

Article 810

(Rules applicable where part of the damages

has been calculated and the rest not)

"1. If part of the damages awarded has not been calculated,

but the rest has, the order in respect of the calculated

damages shall be immediately enforceable.

2. Where the enforcement proceedings concern solely the part

of the award which has been calculated, the payment of the

remaining damages, if it is sought while the enforcement

proceedings are in progress, shall be requested by an

interlocutory application; where an appeal is lodged, a

certified copy of the enforcement decision must be attached

together with, if the enforcement is founded on a judgment,

the memorials and submissions of the parties."

Article 825

(Attachment of half the assets of a couple)

"1. ...

2. ... the common property may be attached immediately

provided that the creditor has included the goods in question

in the list of attachable assets and has asked that the

debtor's spouse be summoned so that he or she may, if they

wish, seek the division of the assets.

3. Within ten days of being summoned, the spouse must

request the division of the property or submit a certificate

proving that such division has already been requested in

connection with other proceedings pending, failing which the

attachment order shall be enforced in respect of the goods in

question.

4. Once that request has been made or the relevant

certificate lodged, enforcement shall be suspended until the

division of the property has been effected ..."

PROCEEDINGS BEFORE THE COMMISSION

21. The applicant lodged his application with the Commission on

16 January 1989. He complained of the length of the civil proceedings

which he had instituted on 20 December 1977 in the Évora Court of First

Instance, considering it to be contrary to Article 6 para. 1 (art. 6-1)

of the Convention.

22. The Commission declared the application (no. 14940/89)

admissible on 19 May 1992. In its report of 1 December 1992

(Article 31) (art. 31), it expressed the opinion, by eighteen votes to

one, that there had been a violation of Article 6 para. 1 (art. 6-1).

The full text of the Commission's opinion and of the two separate

opinions contained in the report is reproduced as an annex to this

judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 286-A of

Series A of the Publications of the Court), but a copy of the

Commission's report is available from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

23. The Government requested the Court to hold:

"1. that the application to review the length of the

declaratory proceedings is inadmissible on the ground of the

applicant's failure to comply with the limitation period

prescribed in Article 26 (art. 26) of the Convention;

2. that the purpose of enforcement proceedings is not to

determine disputes as to civil rights and obligations within

the meaning of Article 6 para. 1 (art. 6-1) of the Convention;

3. that in any event, Article 6 para. 1 (art. 6-1) of the

Convention has not been violated in the present case".

24. The applicant asked the Court to hold:

"in accordance with the opinion of the Commission and the

judgment of the Court in the Martins Moreira case, the issues

and facts of which are the same as in this case ..., that

there has been 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)

25. The applicant maintained that the time taken to hear the civil

action brought by himself and Mr Martins Moreira in the Évora court had

exceeded a "reasonable time" within the meaning of Article 6 para. 1

(art. 6-1), 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 with this view in substance, whereas the

Government contested it.

A. The Government's preliminary objection

26. As they had done before the Commission, the Government

contended that the application was out of time in so far as it

concerned the length of the declaratory proceedings. The judgment of

the Supreme Court of 5 February 1987 (see paragraph 15 above)

constituted the "final decision" for the purposes of Article 26

(art. 26) in fine of the Convention. The enforcement proceedings could

not be regarded as a second stage of the declaratory proceedings. On

the contrary, they were new and separate proceedings. Accordingly, the

six-month period laid down in Article 26 (art. 26) in fine had begun

to run as soon as the judgment in question had been delivered and the

applicant had failed to comply with that time-limit inasmuch as he had

lodged his application on 16 January 1989.

27. Mr Silva Pontes argued that his action for damages could not

reach a conclusion until he had secured payment through the enforcement

proceedings.

28. In its decision on admissibility, the Commission found that in

any event the application had been lodged less than six months after

the end of the enforcement proceedings and reserved for its examination

of the merits of the case the question whether the period to be taken

into consideration should include the declaratory proceedings.

29. It is not for the Court to express a view on the difference of

opinion among legal writers as to whether under Portuguese law

enforcement proceedings are autonomous. As the Delegate of the

Commission observed at the hearing, the moment at which there was a

"determination" of a civil right and therefore a final decision within

the meaning of Article 26 (art. 26) has to be ascertained with

reference to the Convention and not on the basis of national law.

30. If the national law of a State makes provision for proceedings

consisting of two stages - one when the court rules on the existence

of an obligation to pay and another when it fixes the amount owed - it

is reasonable to consider that, for the purposes of Article 6 para. 1

(art. 6-1), a civil right is not "determined" until the amount has been

decided. The determination of a right entails deciding not only on the

existence of that right, but also on its scope or the manner in which

it may be exercised (see, among other authorities, the Pudas v. Sweden

judgment of 27 October 1987, Series A no. 125-A, p. 14, para. 31),

which would evidently include the calculation of the amount due.

31. In the present case, at the stage of the declaratory

proceedings, the Évora court awarded Mr Silva Pontes damages of

540,000 escudos and, in accordance with Article 661 para. 2 of the Code

of Civil Procedure (see paragraph 20 above), reserved for the

subsequent enforcement proceedings the matter of the reimbursement of

the transport costs incurred in order to receive medical treatment

after the accident (see paragraph 11 above). The Évora Court of Appeal

dismissed the applicant's appeal (see paragraph 13 above), but the

Supreme Court awarded him an additional sum, likewise to be determined

in the course of the enforcement proceedings, for damage resulting from

his disability (see paragraph 15 above).

32. As the Government pointed out, when he instituted the

enforcement proceedings, Mr Silva Pontes requested the court to order

the payment of the part of the damages already calculated.

Nevertheless he added to his request a rider formulated as follows:

"without prejudice to the remainder once the details necessary for its

calculation have been established" (see paragraph 16 above).

33. The Court accordingly takes the view, like the Commission, that

the "enforcement" proceedings were not intended solely to enforce an

obligation to pay a fixed amount; they also served to determine

important elements of the debt itself, as is moreover shown by the size

of the out-of-court settlement on which the parties agreed (see

paragraph 19 above). Those proceedings must therefore be regarded as

the second stage of the proceedings which began on 20 December 1977

(see the Guincho v. Portugal judgment of 10 July 1984, Series A no. 81,

p. 13, para. 29, and the Martins Moreira v. Portugal judgment of

26 October 1988, Series A no. 143, p. 16, para. 44). It follows that

the dispute (contestation) over the applicant's right to damages would

only have been resolved by the final decision in the enforcement

proceedings.

34. As Mr Silva Pontes complained of the length of the proceedings

taken as a whole and not of a flaw affecting only the first stage, the

out-of-court settlement concluded on 19 December 1989 denotes the final

domestic decision. The preliminary objection must therefore be

dismissed.

B. The merits of the complaint

1. Applicability of Article 6 para. 1 (art. 6-1)

35. The Government did not dispute that the declaratory proceedings

concerned civil rights and obligations within the meaning of

Article 6 (art. 6), but contended that that provision did not apply to

the enforcement proceedings. Under Portuguese law the purpose of the

latter proceedings was not to settle a dispute over such rights and

obligations, since such proceedings presupposed the existence of a

right.

36. There can be no doubt that Article 6 (art. 6) applies to the

first stage of the proceedings and, having regard to its reasoning in

relation to the preliminary objection, the Court is of the view that

the same must be true of the second stage.

2. Compliance with Article 6 para. 1 (art. 6-1)

37. It remains to ascertain whether a "reasonable time" was

exceeded. The applicant and the Commission considered that it was;

they cited the grounds of the above-mentioned Martins Moreira judgment

(pp. 17-21, paras. 48-61). The Government confined their argument to

the enforcement proceedings and invoked procedural steps which proved

necessary and Mr Silva Pontes's conduct, which had been on occasions

negligent.

38. In the instant case the period to be taken into consideration

did not begin to run when the action was first brought before the

relevant court on 20 December 1977 (see paragraph 10 above), but only

on 9 November 1978, when the Convention entered into force with regard

to Portugal (see the Moreira de Azevedo v. Portugal judgment of

23 October 1990, Series A no. 189, p. 17, para. 70). It ended on

19 December 1989, the date on which the out-of-court settlement was

concluded (see paragraph 19 above and, mutatis mutandis, the

Martins Moreira judgment cited above, p. 16, para. 44). It therefore

lasted eleven years and one month.

39. The reasonableness of the length of proceedings is to be

determined in the light of the circumstances of the case and with

reference to the criteria laid down in the Court's case-law, in

particular the complexity of the case, the conduct of the applicant and

of the relevant authorities and what was at stake for the applicant in

the dispute (see, inter alia, the X v. France judgment of

31 March 1992, Series A no. 234-C, p. 90, para. 32). In connection

with the latter point, special diligence is called for in determining

compensation for the victims of road accidents; this is moreover

recognised by Portuguese law (see paragraph 10 above and the

Martins Moreira judgment, cited above, p. 17, para. 46).

40. As regards the declaratory proceedings, the Court notes the

similarity, acknowledged by the Government, between the applicant's

position and that of Mr Martins Moreira, his co-plaintiff in those

proceedings. In the present case, it sees no reason to depart from the

considerations set forth in its judgment of 26 October 1988 (pp. 17-19,

paras. 48-54). The length of the declaratory proceedings was

accordingly in itself already excessive.

41. The period subsequent to the decision of the Supreme Court of

5 February 1987 only made the proceedings even longer. Accordingly,

the Court does not consider it necessary to examine it in detail.

42. In conclusion, there has been a violation of Article 6

para. 1 (art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

43. Under Article 50 (art. 50),

"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."

The Delegate of the Commission considered that the Court should

award just satisfaction on the same basis and according to the same

principles as in the Martins Moreira case, but did not express a view

on the applicant's claims.

A. Damage

44. Mr Silva Pontes assessed the pecuniary damage at 2,000,000

escudos. The protracted character of the proceedings had prevented him

from securing in good time payment of the compensation awarded by the

court. In addition, the smallness of the sum paid by the Imperio

company - whose liability was limited to 200,000 escudos (see

paragraph 10 above and the above-mentioned Martins Moreira judgment,

p. 22, para. 63) - and the insolvency of the Gestetner company had

meant that at the time he had not been able to obtain the medical

treatment necessitated by his state of health. In order to meet the

costs of such treatment he had had to take out loans, at very high

rates of interest, and sell off personal possessions which he had

valued highly.

The applicant also claimed 4,000,000 escudos for non-pecuniary

damage. He had lived for a long time in a state of uncertainty and

anxiety as regards the outcome of the proceedings and this had had a

detrimental effect on his health.

45. In the Government's contention, the compensation that the

applicant had already received justified a different approach to that

adopted in the Martins Moreira case. In addition, there was no causal

connection between the delays complained of - complaints which were

manifestly baseless in the case of the enforcement proceedings - and

the pecuniary damage alleged.

The non-pecuniary damage related solely to the road accident

itself except in so far as it stemmed from doubts as to the outcome of

the proceedings.

46. The Court notes that the applicant's position was very similar

to that of Mr Martins Moreira. Like the latter, Mr Silva Pontes

suffered a loss of opportunity as a result of the long delay, in breach

of Article 6 (art. 6), found in the present judgment. The fact that

he accepted an out-of-court settlement is not decisive. This agreement

was concluded between the plaintiffs and the defendants (see paragraph

19 above), in other words between private persons, and it concerned the

consequences of the road accident and not those, for which the State

could be held responsible, flowing from the failure to comply with the

reasonable time requirement. Having regard to its approach in the

Martins Moreira judgment (pp. 22-23, paras. 65-67) and the other

relevant factors, and making an assessment on an equitable basis, the

Court awards the applicant 1,500,000 escudos for pecuniary and

non-pecuniary damage.

B. Costs and expenses

47. Mr Silva Pontes also sought 200,000 escudos by way of

reimbursement of the costs of the proceedings and the travel expenses

incurred in Portugal. With regard to the proceedings before the

Convention institutions, he requested the payment of his lawyer's fees

and his own travel and accommodation expenses for his trip to

Strasbourg, but gave no figures for these amounts.

The Government did not express a view.

48. Making an assessment on an equitable basis and in the light of

the criteria it applies in this field, the Court awards the applicant

200,000 escudos to cover all the costs and expenses claimed, in

addition to the 16,699.68 French francs paid by the Council of Europe

as legal aid.

FOR THESE REASONS, THE COURT

1. Dismisses unanimously the Government's preliminary objection;

2. Holds unanimously that Article 6 para. 1 (art. 6-1) is

applicable to this case;

3. Holds by eight votes to one that it has been violated;

4. Holds by eight votes to one that the respondent State is to

pay the applicant, within three months, 1,500,000 (one million

five hundred thousand) escudos for damage and 200,000 (two

hundred thousand) escudos for costs and expenses;

5. Dismisses unanimously 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 23 March 1994.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the dissenting

opinion of Mr Morenilla is annexed to this judgment.

Initialled: R. R.

Initialled: M.-A. E.

DISSENTING OPINION OF JUDGE MORENILLA

(Translation)

1. To my regret I must record my disagreement with the finding of

a violation of Article 6 para. 1 (art. 6-1) of the Convention in this

case and the reasoning on which that finding was based.

2. The majority reached the conclusion that there had been a

violation of Mr Silva Pontes's right to have his case heard within a

reasonable time by applying to the present case the Court's case-law

as laid down in the Guincho v. Portugal judgment of 10 July 1984

(Series A no. 81, p. 13, para. 29) and more specifically in the Martins

Moreira v. Portugal judgment of 26 October 1988 (Series A no. 143,

p. 16, para. 44). The similarity of the facts and the legal issues in

this case to those in the Martins Moreira case - noted by the majority

(paragraph 40 of the judgment) -, as a result of the fact that the two

cases concerned the same compensation proceedings in which the

applicants, as victims of the same road accident, were co-plaintiffs,

led the majority to make an identical finding of a violation of

Article 6 para. 1 (art. 6-1) of the Convention, on the basis of the

delays attributable to the Portuguese judicial authorities in the

proceedings brought by the applicant.

3. In my opinion, however, the present case, notwithstanding the

above-mentioned circumstances, is clearly distinguishable from the

earlier cases. Unlike Mr Martins Moreira and Mr Guincho, who had

applied to the Commission during the declaratory proceedings, Mr Silva

Pontes complained to the Commission two years after the decision of the

Portuguese Supreme Court which concluded the declaratory proceedings

and exhausted the domestic remedies. By virtue of Articles 26 and 27

(art. 26, art. 27) of the Convention, the applicant's complaint that

his case had not been heard within a reasonable time could therefore

only refer to the enforcement proceedings which were then pending and

which had been instituted eight months after the above-mentioned

decision of the Supreme Court.

4. However, the majority appears to disregard this fact, which

goes to the essence of the Convention system. Ultimately, like the

Court in the Martins Moreira judgment moreover, they take sides

- apparently despite themselves (see paragraph 29) - in a century-old

academic dispute as to whether declaratory proceedings and enforcement

proceedings relating to a civil action for damages are parts of one and

the same set of proceedings. The diversity of the legal systems in

Europe - and even the practice of the European Court when applying

Article 50 (art. 50) of the Convention - reveals the heterogeneity of

the approaches taken and shows that it is unrealistic to refer to the

Convention as if it were a monolithic system of precedent-based law.

I consider that this variety in the procedural solutions adopted, which

are, in my opinion, compatible with the Convention inasmuch as they

seek to achieve a more effective and less protracted system of justice,

precludes adopting inflexible positions, which may in addition lead to

dangerous simplifications in view of the great number of different

situations which may arise in the context of enforcement proceedings.

5. Furthermore, when Mr Silva Pontes instituted the enforcement

proceedings, he limited the scope of his action to the part of the

damages that had already been calculated in the final judgment. He did

so expressly (paragraph 16 of the judgment) as is shown by the rider,

likewise formulated in express terms, reserving the right to claim the

remainder "once the details necessary for its calculation have been

established" in accordance with Article 810 of the Portuguese Code of

Civil Procedure. I cannot therefore share the contrary view put

forward by the majority (paragraph 33 of the judgment). Accordingly

the question of the nature of the proceedings concerning the

determination - to be effected at the enforcement stage - of the

damages that had not been calculated, did not arise (paragraph 31 of

the judgment). In the present case the applicant's complaint before

the Commission, based on the excessive duration of the proceedings,

could only, as has been stated, refer to the enforcement proceedings

then pending and could not relate to the declaratory proceedings, which

had reached a final conclusion and in respect of which Mr Silva Pontes

had not previously - throughout the long proceedings and for two years

after the judgment - filed any complaint concerning their length. It

is my view that the Convention institutions' jurisdiction to examine

the length of declaratory proceedings, for the purposes of

Article 6 para. 1 (art. 6-1), cannot extend beyond the time-limit laid

down in Article 26 (art. 26) of the Convention solely because the

applicant decides to seek the enforcement of a final judgment where one

of the debts arising thereunder, having not been calculated, has been

left for the enforcement proceedings.

The majority's approach, which in fact "resuscitates" the

question of delays in the declaratory proceedings, is, I believe,

contrary to legal certainty and to the generally recognised principles

of international law (Article 26 (art. 26) of the Convention). As the

Commission stated (decision of 9 June 1958 in the De Becker case,

application no. 214/56, see G. Cohen-Jonathan, La Convention européenne

des Droits de l'Homme, Paris 1989, p. 132), referring to the travaux

préparatoires, "the two rules contained in Article 26 (art. 26)

concerning the exhaustion of domestic remedies and concerning the

six-month period are closely interrelated".

6. As regards the length of the enforcement proceedings in issue

(from 28 October 1987, when the applicant instituted them, until

19 December 1989, the date of the settlement concluded between the

applicant and Mr dos Reis), the facts of the case show (see

paragraphs 16-19) that the delays which occurred were not attributable

to the Portuguese judicial authorities, who displayed due diligence in

conducting the enforcement proceedings, which were of some complexity

as a result of the incidents which arose during them. The applicant

himself contributed to the delay by taking almost eleven months, from

29 January 1988 until 23 December 1988, to list the attachable goods

of Mr dos Reis, once the Lisbon court has established that it was

impossible to attach the assets of the Gestetner company. In addition,

the enforcement proceedings were stayed on 5 April 1989 following the

request for the separation of the assets of Mrs dos Reis until the

settlement was concluded. In the light of the criteria laid down by

the Court in this field, there has therefore been no violation of the

Convention in this case.