FOURTH SECTION

CASE OF CUNHA MARTINS DA SILVA COUTO v. PORTUGAL

(Applications nos. 69053/13, 69374/13, 69377/13, 71135/13 and 8088/14)

JUDGMENT

STRASBOURG

26 April 2016

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

In the case of Cunha Martins da Silva Couto v. Portugal,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Krzysztof Wojtyczek, President,
	Paulo Pinto de Albuquerque,
	Iulia Antoanella Motoc, judges,
and Fatos Aracı, Deputy Section Registrar,
Having deliberated in private on 22 March 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in five applications (nos. 69053/13, 69374/13, 69377/13, 71135/13 and 8088/14) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Mr José Luís Cunha Martins da Silva Couto on the various dates indicated in the appended table.
2.  The Portuguese Government (“the Government”) were represented by their Agent, Mrs M. F. da Graça Carvalho, Deputy-Attorney General.
3.  On 21 November 2014 the applications were communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1961 and lives in Porto. The relevant details of the applications are set out in the appended table.
5.  The applicant complained of the excessive length of civil proceedings and the lack of an effective remedy in this respect.
THE LAW
Article II.	I.  JOINDER OF THE APPLICATIONS
6.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
Article III.	II.  ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
7.  The applicant complained that the length of the five set of proceedings had been incompatible with the “reasonable time” requirement. He also complained that he had not had an effective remedy in this respect. He relied on Articles 6 § 1 and 13 of the Convention, which reads as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority.”
Section 3.01	A.  Admissibility
8.  The Government submitted that the applicant could not be regarded as having locus standi before the Court with regard to the whole duration of the five different set of proceedings. They submitted that at the moment the domestic proceedings started – between 1 January and 5 July 2003 – until 2009 the applicant had not been a party to the proceedings. They argued that the applicant only had locus standi before the Court from February 2009, with regard to applications nos. 69053/13, 69374/13, 69377/13 and 71135/13, and from October 2010 with regard to application no. 8088/14, when, following the liquidation of the applicant’s company in 2008, he replaced it as party in the domestic proceedings.
9.  The Court reiterates that the term “victim” used in Article 34 of the Convention denotes the person directly affected by the act or omission which is in issue. It further reiterates that a person cannot complain of a violation of his or her rights in proceedings to which he or she was not a party, even if he or she was a shareholder and/or director of a company which was party to the proceedings (Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 94, ECHR 2012).
10.  The Court notes that in the instant applications the different proceedings were instituted by or against the applicant’s company. It further notes that the applicant was the main shareholder of the company and that he only intervened as a party to the domestic proceedings after the liquidation of the company in 2008. The Court further observes that between 20 February 2009 and 13 October 2010 the applicant lodged requests with the Court seeking to replace the company as a party to the proceedings.
11.  In the light of the above and having examined all the material submitted to it, the Court agree with the Government and considers that although the impugned proceedings had started in 2003, the applicant can only be considered to be a victim of the alleged length of proceedings from February 2009, with regard to applications nos. 69053/13, 69374/13, 69377/13 and 71135/13, and from October 2010 with regard to application no. 8088/14.
12.  The Government further argued that the applications were inadmissible on non-exhaustion grounds.
13.  The Court notes that prior to 27 May 2014, Portuguese practice did not provide for an effective legal remedy allowing a claimant to obtain compensation in a situation concerning length of proceedings (Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, § 50, 10 June 2008; and Valada Matos das Neves v. Portugal, no. 73798/13, § 106, 29 October 2015). It further notes that the five applications were lodged before the Court between 28 October and 30 December 2013.
14.  It follows that the application is neither manifestly ill-founded within the meaning of Article 35 § 3 of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
15.  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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
16.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject (Martins Castro and Alves Correia de Castro v. Portugal, cited above), the Court considers that in the instant cases the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
17.  There has accordingly been a breach of Article 6 § 1.
(a)	Alleged violation of Article 13 of the Convention
18.  The Court recalls that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 for a case to be heard within a reasonable time (Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000‑XI).
19.  The Court notes that prior to 27 May 2014 the applicant did not have at his disposal an effective remedy by which to submit his length-of-proceedings complaints (see paragraph 9 above).
20.  Having regard to its case-law on the subject applicable to the present cases (Martins Casto and Alves Correia de Castro, cited above; Garcia Franco and Others v. Portugal, no. 9273/07, § 50, 22 June 2010), the Court considers that the applicant had had no effective remedy against the excessive length of proceedings.
Article IV.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
21.  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.”
Section 4.01	A.  Damage
22.  The applicants claimed in total 51,592 euros (EUR) in respect of non-pecuniary damage for the five set of proceedings.
23.  The Government contested the claim.
24.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 15,275 under that head.
Section 4.02	B.  Costs and expenses
25.  The applicants also claimed EUR 5,000 for the costs and expenses incurred before the Court.
26.  The Government contested the claim.
27.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 500 under this head.
Section 4.03	C.  Default interest
28.  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.  Decides to join the applications;

2.  Declares the applications admissible;

3.  Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts:
(i) EUR 15,275 (fifteen thousand two hundred and seventy five euros), plus any tax that may be chargeable, in respect of 
non-pecuniary damage;
(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the 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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 26 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatos Aracı	Krzysztof Wojtyczek
	Deputy Registrar	President

APPENDIX

List of applications

No.	Application no.
Date of introduction	Start of proceedings	End of proceedings	Total length
Levels of jurisdiction	Amount awarded for non-pecuniary damage per application
(in euros)	Amount awarded for costs and expenses
	
1.		69053/13
28/10/2013	21/04/2009
	13/02/2014	4 years, 9 months, 25 days
2 levels of jurisdiction	EUR 15,275
(fifteen thousand two hundred and seventy five euros)	EUR 500
(five hundred euros)	
2.		69374/13
30/10/2013	20/02/2009
	Still pending according to the last information received by the Court on 26/05/2015	6 years, 11 months, 13 days
2 levels of jurisdiction			
3.		69377/13
30/10/2013	20/02/2009
	Still pending according to the last information received by the Court on 26/05/2015	6 years, 11 months, 13 days
2 levels of jurisdiction			
4.		71135/13
01/11/2013	16/05/2009
	28/11/2014	5 years, 6 months, 14 days
2 levels of jurisdiction			
5.		8088/14
30/12/2013	13/10/2010	27/06/2014	3 years, 8 months, 14 days
2 levels of jurisdiction