NUNES LUCAS SARAIVA AND TRIGO SARAIVA v. PORTUGAL - 63582/13 [2016] ECHR 812 (04 October 2016)

In the case of Nunes Lucas Saraiva and Trigo Saraiva v. Portugal,

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

          Iulia Motoc, President,
          Paulo Pinto de Albuquerque,
          Marko Bošnjak, judges,

and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 13 September 2016,

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

PROCEDURE

1. The case originated in two applications (nos. 63582/13 and 18347/14) 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 two Portuguese nationals, Ms Francelina Nunes Lucas Saraiva and Mr Duarte José Trigo Saraiva (“the applicants”), on 2 October 2013 and 21 February 2014 respectively.

2. The applicants were represented by Mr J. J. Ferreira Alves, a lawyer practising in Matosinhos. The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General.

3. On 16 November 2015 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1950 and in 1949, respectively, and live in Matosinhos.

5. On 16 March 2005 A.C. and M.L. instituted civil proceedings against the applicants and other four defendants before the Matosinhos Court seeking the payment of 11,843.48 euros (EUR) due to the alleged sale of a part of the plaintiffs’ property.

6. On 29 March 2005 the applicants were summoned to challenge the action against them; which they did not. In the notification letter they were given notice that the lack of opposition would entail the confession of the facts pursuant to Article 484 § 1 of the Code of Civil Procedure (see paragraph 11 below).

7. Between 21 April 2005 and 24 May 2013 several procedural steps took place either by action of the plaintiffs, the remaining defendants or the Matosinhos Court. In particular: on 21 April 2005 the remaining defendants contested the action; on 3 November 2005 the plaintiffs submitted observations in reply; on 17 October 2007 the plaintiffs lodged a request seeking the intervention of I.T. in the proceedings, which was admitted by the Matosinhos Court on 29 May 2009; on 15 December 2010 the judge gave directions concerning the matters to be discussed at the hearing (despacho saneador); on 21 March 2012, following I.T.’s death, the Matosinhos Court stayed the proceedings pending the outcome of inheritance proceedings.

8. On 24 May 2013 the applicants submitted a power of attorney and requested that the case-file be uploaded to the legal platform “CITIUS” for consultation.

9. On 10 January 2014 the applicants requested the participation of an expert of their own choosing in the preparation of the expert report which had been sought by the plaintiffs. On an unknown date the other defendants in the proceedings lodged an opposition to the applicants’ request.

10. On 16 October 2015 the Matosinhos Court adopted a judgment in which it ruled in favour of the applicants.

II. RELEVANT DOMESTIC LAW

11. The relevant part of the Portuguese Code of Civil Procedure, in the version in force at the material time (Law Decree no. 44129, of 28 December 1961, as amended until Law Decree no. 226/2008, of 20 November 2008), provided as follow:

Article 483

“If the defendant, in addition to not challenging the action against him, does not give power of attorney to a legal representative nor does he intervene in any way in the proceedings, the court has to verify whether the notification has complied with all legal formalities; if irregularities are found, the court orders a new notification.”

Article 484

“1. In the event that the defendant was or should be considered regularly notified ... the absence of opposition to the action entails the confession of the facts as submitted by the plaintiff.

...”

Article 486

“1. The defendant can challenge the action within 30 days ...”

THE LAW

I. JOINDER OF THE APPLICATIONS

12. 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 they raise the same issues under the Convention.

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

13. The applicants 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...”

A. Admissibility

14. The Government raised an objection, arguing that the applicants’ first intervention in the proceedings only took place eight years after they had started, on 24 May 2013 when they first submitted the power of attorney (see paragraph 8 above). Before that date, the applicants had shown no interest in the proceedings; consequently, they could not be considered victims of the length of proceedings until that moment.

15. The Court considers that the Government’s objection is closely linked to the applicants’ complaint under Article 6 of the Convention. It therefore considers that the objection should be joined to the merits of the complaint.

16. 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 (see Valada Matos das Neves v. Portugal, no. 73798/13, § 106, 29 October 2015). It further notes that the applications were lodged before the Court on 2 October 2013 and 21 February 2014.

17. It follows that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

18. The Government acknowledged that the length of the proceedings had exceeded what would legitimately be expected. However, they argued that the applicants could only complain about the length from the moment of their first intervention in the proceedings, on 24 May 2013 (see paragraphs 8 and 14 above). In that regard, the length of proceedings had not been excessive.

19. 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).

20. Turning to the facts of the present case, the Court first has to determine the period to be taken into consideration. In this respect, the Court observes that it cannot be said that the applicants were not victims of the length since the beginning of the proceedings, specially taking into account that Article 486 § 1 of the Code of Civil Procedure established a right to challenge an action but not a duty to do so (see paragraph 11 above). In this regard, the Court notes, in particular, that the applicants were made aware of the consequences of not challenging the proceedings - the confession of the facts as submitted by the plaintiffs as established by Article 484 § 1 of the Code of Civil Procedure (see paragraph 11 above). The Court then notes that, if the Matosinhos Court had had doubts concerning the applicants’ notification, given their inaction, it could have verified whether the notification had been correctly made pursuant to Article 483 of the Code of Civil Procedure (see paragraph 11 above).

21. In this regard, the Court recalls that although an omission from an applicant may have an impact on the length of proceedings (see Acquaviva v. France, 21 November 1995, § 61, Series A no. 333-A), it cannot be said that, in the instant case, the applicants’ inactivity until 24 May 2013 had an adverse effect on the length of proceedings. It follows that, for the purposes of the examination of the applicants’ complaint, the starting point of the period to be taken into consideration should be fixed at 29 March 2005, when the applicants were summoned to challenge the action against them (see paragraph 6 above), and not at 24 May 2013, when they submitted a power of attorney (see paragraph 8 above). The proceedings ended on 16 October 2015, with the judgment of the Matosinhos Court (see paragraph 10 above). They thus lasted more than ten years and six months for one level of jurisdiction.

22. The Court further observes that the proceedings concerned an alleged credit claim in which no particular complexity is discernible.

23. As regards the conduct of the national authorities, the Court notes that, notwithstanding the applicants’ lack of intervention from 29 March 2005 to 24 May 2013, there were still some periods of inactivity on the part of the Matosinhos Court for which the Government provided no explanation. The Court notes, in particular, that it took more than five years for the judge to give directions concerning the matters to be discussed at the hearing (see paragraph 7 above); that it took one year and seven months for the Matosinhos Court to decide on I.T.’s intervention in the proceedings from 17 October 2007 to 29 May 2009; that no development occurred between 15 December 2010 and 21 March 2012 when the Matosinhos Court stayed the proceedings following I.T.’s death (see paragraph 7 above), and that it took more than one year since the applicants’ request on 10 January 2014 until the delivery of the judgment on 16 October 2015 (see paragraphs 9-10 above).

24. In the light of the foregoing, the Court concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in question. Having regard to its case-law on the subject (see 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.

25. There has accordingly been a breach of Article 6 § 1.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

26. The applicants further alleged that in Portugal they did not have at their disposal any effective remedy to complain about the excessive length of proceedings. They relied on Article 13 of the Convention, which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

27. The Government contested that argument.

28. 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 (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).

29. The Court notes that prior to 27 May 2014 the applicants did not have at their disposal an effective remedy by which to submit their length of proceedings complaints (see paragraph 17 above).

30. Having regard to its case-law on the subject (see Martins Castro and Alves Correia de Castro, cited above, §§ 51-57), the Court considers that the applicants had had no effective remedy against the excessive length of the proceedings.

31. There has accordingly been a breach of Article 13 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

32. 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

33. The applicants each claimed EUR 17,000 in respect of non-pecuniary damage.

34. The Government contested the claim.

35. The Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it jointly awards them EUR 7,280 under that head.

B. Costs and expenses

36. The applicants also claimed EUR 2,100 for the costs and expenses incurred before the Court.

37. The Government contested the claim.

38. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to jointly award the applicants the sum of EUR 1,000 under this head.

C. Default interest

39. 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 jointly pay the applicants, within three months, the following amounts:

(i) EUR 7,280 (seven thousand two hundred and eighty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand 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 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Iulia Motoc
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> NUNES LUCAS SARAIVA AND TRIGO SARAIVA v. PORTUGAL - 63582/13 [2016] ECHR 812 (04 October 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/812.html Cite as: CE:ECHR:2016:1004JUD006358213, [2016] ECHR 812, ECLI:CE:ECHR:2016:1004JUD006358213