FREITAS v. PORTUGAL - 8349/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section Committee)) [2016] ECHR 44 (12 January 2016)

In the case of Freitas v. Portugal,

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

          Boštjan M. Zupančič, President,
          Paulo Pinto de Albuquerque,
          Iulia Antoanella Motoc, judges,

and Fatos Araci, Deputy Section Registrar,

Having deliberated in private on 1 December 2015,

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

PROCEDURE

1. The case originated in two applications (nos. 8349/13 and 56418/13) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Ms Maria João Freitas (“the applicant”), on 18 January and 27 August 2013.

2. The Portuguese Government (“the Government”) were represented by their Agent, Mrs M.F. da Graça Carvalho, Deputy-Attorney General.

3. On 5 November 2014 the applications were communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicants was born in 1976 and lives in Porto.

A. Application no. 8349/13

5. On 28 August 1996 the applicant instituted an action for the settlement of accounts in inventory proceedings (ação especial de prestação de contas em inventário) before the Penafiel Court.

6. From 20 December 1996 to 24 April 1997 the administrator of the estate (cabeça de casal) was notified, challenged the action and submitted the relevant accounts, which were contested by the applicant.

7. On 23 February 1998 the judge gave instructions setting out the matters that had already been established and those that remained outstanding (despacho saneador). On 17 June 1998 the evidence submitted by the parties was admitted by the Penafiel Court.

8. On 17 September 1998 the applicant revoked the power of attorney given to her lawyer in the proceedings and on 6 November 1998 requested legal aid, which was granted by the State’s Attorney’s Office on 5 February 1999. On 22 February 1999 a lawyer was appointed to represent the applicant.

9. On 19 March 1999, following a request of the applicant’s representative, the hearing scheduled to 24 March 1999 was adjourned.

10. On 19 October 1999 the hearing was adjourned because the representative of the administrator of the estate failed to appear. The hearing was adjourned to 9 May 2000.

11. On 2 May 2000 the applicant requested to represent herself in the proceedings.

12. On 9 May 2000 the applicant’s request was granted and the first hearing was held. The hearing continued on 24 May 2000.

13. On 5 June 2000 the Penafiel Court adopted a decision with regard to the factual basis (matéria de facto) and on 14 September 2000 it delivered its judgment in which it ruled against the applicant.

14. On 25 September 2000 the applicant appealed against the decision before the Porto Court of Appeal, which delivered a decision remitting the case to the first-instance court on 5 June 2001.

15. Between 5 June 2001 and 23 June 2010 the proceedings were again analysed by the first-instance court to which they were remitted twice. On 23 June 2010 the Penafiel Court adopted its fourth judgment in the proceedings.

16. Between 7 July 2010 and March 2013 the applicant lodged different appeals before the Porto Court of Appeal, the Supreme Court of Justice and the Constitutional Court.

17. On 10 May 2013 the Constitutional Court adopted the final decision in the proceedings.

B. Application no. 56418/13

18. On 23 November 1995 the applicant instituted inventory proceedings (processo especial de inventário) before the Porto Court.

19. Between 13 December 1995 and 14 November 1996 several procedural steps took place, namely, the appointment of the administrator of the estate (cabeça de casal) and declarations from the parties.

20. On 23 May 1997 a conference between the parties (conferência de interessados) started. The conference was adjourned to 25 June 1997 at the request of the parties who argued they would try to reach an agreement.

21. On 25 June 1997, at the request of the parties, the proceedings were stayed for ten days.

22. On 8 September 1997 the applicant requested information to the administrator of the estate with regard to certain amounts which had allegedly been received by her. On 20 October 1997 the administrator of the estate replied.

23. On 27 November 1997 the conference of the parties continued and the representative of administrator of the estate requested the suspension of the proceedings due to the death of the latter.

24. Between 4 December 1997 and 23 June 1998 procedural steps were taken in view of the continuation of the proceedings against the heirs of the deceased administrator of the estate (incidente de habilitação de herdeiros). In this period a second administrator of the estate was appointed.

25. Between 18 September 1998 and 7 January 1999 the applicant revoked the power of attorney given to her lawyer in the proceedings and requested legal aid, which was granted.

26. On 19 March 1999 the conference of the parties was scheduled to 26 May 1999.

27. On 21 April 1999 the administrator of the estate requested a second set of proceedings against the heirs of her father. On 10 December 1999 the Porto Court admitted the heirs as parties to the proceedings.

28. Between 17 February 2000 and 21 June 2000 the Porto Court attempted to notify one of the heirs.

29. On 14 December 2000 the conference of the parties was adjourned due to the death of a J.L.E, party to the proceedings. On 13 March 2001 proceedings were initiated against the heirs of J.L.E, seeking their intervention in the proceedings.

30. On 13 December 2001 the conference of the parties was adjourned at the request of the parties who sought to reach an agreement. The agreement between the parties failed.

31. Between 30 January 2002 and 5 June 2006 the parties lodged several requests with the Porto Court, to which it promptly replied.

32. On 21 November 2002 a third set of proceedings against the heirs of M.P.E., party to the proceedings, was initiated; having ended on 16 January 2003.

33. On 11 June 2003 the Porto Court adopted a decision with regard to the partition of the estate (sentença de partilha).

34. On 29 September 2003 the applicant appealed against the decision before the Porto Court of Appeal. By a decision of 7 April 2004 the Porto Court of Appeal quashed the first-instance decision, annulled all the procedural steps taken and remitted the case to the Porto Court.

35. Between 13 October 2004 and 5 January 2005 several procedural steps took place, in particular, notifications, a request made by the applicant and delivering of declarations.

36. On 25 January 2005 the Porto Court ordered the suspension of the proceedings in order to determine the legal standing of one of the parties. Between 9 February 2005 and 22 November 2005, the applicant appealed against this decision before the Porto Court of Appeal - which was dismissed - and the administrator of the estate requested the continuing of the proceedings, which was determined by the Porto Court.

37. On 31 January 2007 the conference of the parties was adjourned to 3 May 2007, which continued on 6 June 2007.

38. Between 11 June 2007 and 14 June 2011 several applications were made and challenged by the parties, different appeals were lodged by the applicant and several notifications were made by the Porto Court, which promptly replied to all requests.

39. On 14 June 2011 the Porto Court adopted a decision with regard to the partition of the estate. On 30 June 2011 the applicant appealed against the decision, which was dismissed by the Porto Court of Appeal on 24 April 2012.

40. Between May 2012 and June 2013 the applicant lodged three appeals before the Supreme Court of Justice and two appeals before the Constitutional Court. The appeals were dismissed, the last decision being adopted by the Constitutional Court on 22 October 2013.

41. On 2 February 2014 the applicant started proceedings seeking the enforcement of the decision with regard to the partition of the estate (processo especial de execução de inventário), which is still pending before the Porto Court.

THE LAW

I. JOINDER OF THE APPLICATIONS

42. The Court considers that, pursuant to Rule 42 § 1 of the Rules of the Court, the applications should be joined and examined in a single judgment, given that these two applications, which were lodged by the same applicant, raise essentially identical issues under the Convention.

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

43. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...”

44. As regards application no. 8349/13 the period to be taken into consideration began on 28 August 1996 and ended on 10 May 2013. It thus lasted sixteen years and eigth months for four levels of jurisdiction. As regards application no. 56418/13 the period to be taken into consideration began on 23 November 1995 and ended on 22 October 2013; it then restarted on 2 February 2014, when the applicant started proceedings for the enforcement of the decision concerning the partition of the estate which are still pending. The overall length of the proceedings has thus already lasted nineteen years and four months for four levels of jurisdiction.

A. Admissibility

45. The Court notes that the applications not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

46. The Government acknowledged that the two sets of proceedings had been subject to a delay and that their length had exceeded what would legitimately be expected. Nevertheless, the Government were of the opinion that the length of the proceedings in the present cases had been caused by the applicant’s behaviour and could not been attributable to the domestic courts.

47. 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).

48. Turning to the facts of the present case, the Court firstly notes that the first set of proceedings lasted sixteen years and eight months for four levels of jurisdiction and that the second set of proceedings, whose enforcement stage is still pending, has already lasted nineteen years and four months for four levels of jurisdiction.

49. The Court notes that the two sets of proceedings concerned inheritance disputes in which no particular complexity is discernible.

50. In respect of the applicant’s conduct, the Court considers that the applicant’s requests and appeals in the proceedings undoubtedly contributed to the length of the proceedings, in particular in the application no. 56418/13. However, the Court notes that it has been its constant approach that an applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of his or her interests (see, for example, Kolomiyets v. Russia, no. 76835/01, § 29, 22 February 2007). As regards the second set of proceedings (application no. 56418/13) the Court observes that a significant proportion of the requests and appeals were lodged by the applicant while the case was pending before the first-instance court. However the Court considers that it alone cannot justify the overall length of the proceedings.

51. As regards the conduct of the national authorities, the Court notes that in application no. 8349/13 there were some periods of inactivity on the part of the Penafiel Court for which the Government provided no explanation, namely with regard to the scheduling of hearings (see paragraphs 9-10 above). In application no. 56418/13 the Court does not detect any obvious delays on the part of the courts in replying to the parties’ different requests and appeals. However, explanation was not provided on why the Porto Court allowed the proceedings to extend for almost twenty years. In this connection, the Court reiterates that it has stated on many occasions that Article 6 § 1 imposes on the Contracting States a duty to organise their legal systems in such a way that their courts can meet each of the requirements of that provision, including the obligation to hear cases within a reasonable time (see, among other authorities, Süßmann v. Germany, 16 September 1996, § 55, Reports of Judgments and Decisions 1996-IV; Bottazzi v. Italy [GC], no. 34884/97, § 22 , ECHR 1999-V; and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006-V). As regards application no. 8349/13, three remittals and one remittal as regards application no. 56418/13, are to be viewed as an indication of deficiencies in the proceedings for which the applicant bears no responsibility; (see, mutatis mutandis, Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003). In this regard, the Court recalls that the remittal of the case for re-examination usually refers to errors committed by lower courts. As such, when the overall length of the proceedings is caused by such reasons, it should be, in the Court’s view, imputable to the authorities and not to the applicants (compare Wierciszewska v. Poland, cited above, § 46).

52. In the light of the foregoing, the Court concludes that the State authorities bear the primary responsibility for the excessive length of the two set of proceedings in question.

53. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

54. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject (Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, 10 June 2008), the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

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

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

56. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

57. The applicants claimed 1,025,000 euros (EUR) in respect of pecuniary damage and EUR 1,000,000 with respect to non-pecuniary damage.

58. The Government contested these claims.

59. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards award her EUR 18,590 under that head.

B. Costs and expenses

60. The applicants also claimed EUR 13,340 for the costs and expenses incurred before the domestic courts and the Court.

61. The Government contested the claim.

62. Regard being had to the documents in its possession and to its
case-law, the Court rejects the claim for costs and expenses in the domestic proceedings. The Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 500 under this head.

C. Default interest

63. 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 Article 6 § 1 of the Convention;

4. Holds

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

(i) EUR 18,590 (eighteen thousand five hundred and ninety 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 applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 12 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Boštjan M. Zupančič
Deputy Registrar President

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