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You are here: BAILII >> Databases >> European Court of Human Rights >> BARAONA v. PORTUGAL - 10092/82 [1987] ECHR 13 (8 July 1987) URL: http://www.bailii.org/eu/cases/ECHR/1987/13.html Cite as: (1991) 13 EHRR 329, [1987] ECHR 13

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In the Baraona case*,

_______________

* Note by the Registrar: The case is numbered 11/1986/109/157. 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. Thór Vilhjálmsson,

Sir Vincent Evans,

Mr. C. Russo,

Mr. R. Bernhardt,

Mr. J. De Meyer,

Mr. J. Melo Franco, ad hoc judge,

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

Registrar,

Having deliberated in private on 27 February and 23 June 1987,

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 the Portuguese Government ("the

Government") on 28 January and 4 February 1986 respectively, within

the three-month period laid down in Article 32 § 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 10/092/82) against the Republic of Portugal lodged

with the Commission on 6 September 1982 by Mr. Joachim Baraona, a

Portuguese national.

2. 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), and

the Government's application referred to Article 48 (art. 48). Their

purpose was to obtain a decision from the Court as to whether the

facts of the case disclosed a breach by the respondent State of its

obligations under Article 6 § 1 (art. 6-1).

3. In response to the enquiry made in accordance with

Rule 33 § 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).

4. The Chamber of seven judges 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 § 3 (b)). On

19 March 1986, in the presence of the Registrar, the President of the

Court drew by lot the names of the other five members, namely

Mr. Thór Vilhjálmsson, Mr. B. Walsh, Sir Vincent Evans,

Mr. R. Bernhardt and Mr. J. De Meyer (Article 43 in fine

of the Convention and Rule 21 § 4) (art. 43).

As Mr. Pinheiro Farinha had withdrawn pursuant to Rule 24 § 2, the

Government on 21 April appointed Mr. João Augusto Pacheco e Melo

Franco, of the Supreme Court of Portugal, to sit as an ad hoc

judge (Article 43 of the Convention and Rule 23) (art. 43).

Subsequently, Mr. Walsh, who was unable to attend, was replaced

by Mr. C. Russo, substitute judge.

5. Mr. Ryssdal assumed the office of President of the Chamber

(Rule 21 § 5) and, through the Registrar, consulted the Agent of the

Government, the applicant's lawyer and the Delegate of the Commission

on the need for a written procedure (Rule 37 § 1). On 4 April 1986,

he decided that the said Agent and lawyer should have until 30 June to

file memorials and that the Delegate should be entitled to reply in

writing within two months.

The Government and the applicant filed their memorials with the

registry on 27 and 30 June 1986 respectively; on 22 July, the

Secretary to the Commission informed the Registrar that the Delegate

would submit his observations at the hearing.

6. Having consulted - through the Registrar - the Agent of the

Government, the Delegate of the Commission and the applicant's lawyer,

the President directed on 10 December 1986 that the oral proceedings

should commence on 24 February 1987 (Rule 38). He subsequently

authorised the Agent to use the Portuguese language (Rule 27 §§ 2

and 3).

On 12 February, the Registrar received from the Commission several

documents he had requested on the President's instructions.

7. The hearing was held 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:

- for the Government

Mr. I. Cabral Barreto, Deputy Procurador-Geral, Agent,

Mr. J.N. Cunha Rodrigues, Procurador-Geral,

Mr. J. Figueiredo Dias, Professor of Law in the

University of Coimbra,

Mr. J. Miranda, Professor of Law in the

University of Lisbon, Counsel;

- for the Commission

Mr. A.S. Gözübüyük, Delegate;

- for the applicant

Mr. J. Lebre de Freitas, advogado,

Mr. J. Pires de Lima, advogado, Counsel.

The Court heard addresses and submissions by Mr. Cabral Barreto,

Mr. Figueiredo Dias and Mr. Miranda for the Government, by

Mr. Gözübüyük for the Commission and by Mr. Lebre de Freitas and

Mr. Pires de Lima for the applicant, as well as their replies to its

questions. The Agent of the Government and counsel for the applicant

filed several documents.

8. On 6 May 1987, the Delegate of the Commission lodged with the

registry his comments on the application of Article 50 (art. 50).

AS TO THE FACTS

I. Particular circumstances of the case

9. The applicant, a Portuguese national born in 1930, is a

businessman resident at Vitoria in Brazil.

Until May 1975, he lived with his wife and their five children at

Cascais (in Portugal). On 17 May 1975, the chairman of the

"Commission for co-ordinating the disbandment of the PIDE/DGS (the

International Political Police for the Protection of the

State/Directorate-General of Security) and the LP (the Portuguese

Legion)" ordered the applicant's immediate arrest on the grounds that

he was a "dangerous reactionary" and that it was necessary to

"investigate his reactionary activities". At the time, following the

attempted coup of 11 March 1975, Portugal was going through a

difficult period, which lasted until the adoption of the new

Constitution on 25 April 1976.

Having learned that he was about to be arrested, the applicant fled to

Brazil with his family and did not return to Portugal until

September 1978, after the warrant for his arrest had been revoked.

10. In his absence the employees of his civil-engineering firm

took over the company and other assets of his, including his house,

furniture and bank accounts. On 31 May 1976, the Cascais District

Court declared the applicant's business insolvent. Furthermore, the

Cofre da Previdência, a public bank from which the applicant had

bought his house, repossessed the house for default on payment and

sold it to someone else.

The applicant was later able to reach a friendly settlement and

recover possession of the house on payment of certain sums to the bank

and to the other person involved.

11. On 30 July 1981, the applicant brought a civil action in the

Administrative Court (auditoría administrativa) of Lisbon seeking

damages from the State under Legislative Decree no. 48.051 of

21 November 1967 on the State's non-contractual liability for acts of

public administration (see paragraph 30 below). He contended that the

warrant for his arrest had been illegal as it did not specify an

offence and did not have a "proper purpose". The applicant claimed

8,800,000 escudos in compensation for pecuniary and non-pecuniary

damage.

The next day, the court registered the originating application

(petição inicial) and issued a summons to the defendant - represented

by State Counsel's Office (ministério público) - requesting a reply

within twenty days, in accordance with Article 486 § 1 of the Code of

Civil Procedure (see paragraph 32 below).

12. On 28 October 1981 and again on 27 January 1982, the

Administrative Court granted a three-month extension of time applied

for by State Counsel under Article 486 § 3 of the aforementioned Code

(see paragraph 32 below).

13. On 26 April 1982, State Counsel again applied for an

exceptional thirty-day extension on the ground that he needed more

information in order to prepare his submissions in reply

(contestação). The court granted the application on 28 April 1982.

Two further applications for exceptional thirty-day extensions were

made by State Counsel on 8 June and 21 July 1982, on the ground that

he did not yet have all the material with which to prepare his reply.

The court granted these applications on 14 June and 27 July

respectively.

14. On 30 July 1982, the applicant complained to the court of this

series of extensions and requested copies of some of the documents in

the file in order to complain to the Supreme Council of the Judiciary

and to the European Commission of Human Rights of a breach of

Article 6 § 1 (art. 6-1) of the Convention.

15. On 29 September 1982, he lodged notice of an appeal against an

interlocutory order (de agravo - "interlocutory appeal") to the

Supreme Administrative Court (Supremo Tribunal Administrativo) in

respect of the Lisbon Administrative Court's decision of 27 July in

allowing State Counsel more time. He lodged the appeal with the lower

court, with a request that it should be forwarded immediately to the

higher court.

On 15 October 1982, the Administrative Court declared the

interlocutory appeal admissible but ordered that it should be placed

on the file with the main appeal and not separately forwarded to the

Supreme Administrative Court straightaway. It added that the

interlocutory appeal had no suspensive effect.

16. In his statement of grounds of appeal (alegações) dated

26 October 1982, the applicant contended that the Administrative Court

had infringed Article 486 § 3 of the Code of Civil Procedure in

extending the time allowed to State Counsel to file his pleadings by

more than six months without exceptional cause, and that State Counsel

had failed to specify what evidence and information he still needed.

Such an extension of time could not be granted by the court

arbitrarily, but only on exceptional grounds, and it could not exceed

six months. Yet on this occasion more than a year had passed without

State Counsel submitting his pleadings or giving valid reasons for not

doing so.

17. On 4 November 1982, State Counsel applied for another

exceptional ten-day extension on the ground that the Administrative

Court had moved into other premises and that for a time this had

halted his office's work. When invited by the court on 9 November to

comment on this application, the applicant replied - on 15 November -

that he considered it unjustified; he further demanded that it should

be refused and that the time allowed to State Counsel should be

declared to have expired.

18. State Counsel's pleadings were filed with the Administrative

Court on 18 November and immediately forwarded to Mr. Baraona by the

registrar of the court.

In the belief that the Administrative Court had decided to include

these in the file and have a copy served on him, the applicant lodged

with that court notice of an interlocutory appeal to the Supreme

Administrative Court on 25 November and requested that the appeal

should be forwarded immediately to the higher court and should have

suspensive effect.

On 30 November, the applicant nevertheless filed his reply (réplica)

to the pleadings lodged by State Counsel, who made a rejoinder

(tréplica) on 17 December.

19. On 21 December 1982, State Counsel submitted his observations

(contra-alegações) on the applicant's interlocutory appeal of

29 September. As grounds for the requested extensions, he alleged the

need not only to assemble evidence but more particularly to decide on

the general thrust of his pleadings, especially as regards objections.

Moreover, there was no requirement under Article 486 § 3 of the Code

of Civil Procedure to give detailed reasons for his application; a

general justification was sufficient. Admittedly, Article 266 of the

Code of Civil Procedure required the court to remove any hindrance

delaying the proceedings, but that was a discretionary power which in

the present case could not be usefully exercised.

20. On 11 February 1983, the Administrative Court of Lisbon

reversed its decision of 27 July 1982 to allow State Counsel more time

and instead refused the application. Relying on Article 486 § 3 of

the Code, it ruled that an extension of time could only be granted if

State Counsel neither had the necessary information nor could obtain

it in the time allowed. In addition, he had to specify the subject on

which he needed information and the steps he had taken to obtain it.

In the present case he had simply said he needed more information,

without giving further particulars.

The court accordingly excluded as having been filed out of time all

pleadings submitted by the parties after 27 July 1982, that is to say

State Counsel's pleadings of 18 November 1982, the applicant's reply

of 30 November and the rejoinder of 17 December, and ordered that they

be removed from the file.

Noting, lastly, that State Counsel's pleadings had been sent to the

applicant by the registrar and not by the court itself, the court

refused to entertain the applicant's interlocutory appeal of

25 November 1982, as no appeal lay to the higher court against actions

by the registrar, and a complaint should be made to the court itself.

21. On the same day, the court ordered a number of investigatory

measures, including a search for the warrant issued for Mr. Baraona's

arrest in 1975.

When it became apparent that no trace of the warrant could be found,

the Administrative Court gave a preliminary decision (despacho

saneador) on 30 December 1983 declaring the case admissible and

setting out a list of the facts agreed by the parties (especificação)

and a list of matters to be clarified at the hearing (questionário).

22. On 20 January 1984, under Article 511 § 2 of the Code of Civil

Procedure, the applicant lodged a complaint against this decision. He

argued that, as State Counsel's pleadings had been withdrawn from the

case file, all the allegations he had made in his own statement of

claim were to be regarded as admitted, since Article 485

sub-paragraph (b) and Article 490 § 4 of the Code of Civil Procedure

(see paragraph 32 below) had been abrogated by Article 6 § 1

(art. 6-1) of the Convention, which laid down the principle of

equality of arms. Consequently, all the matters which the court had

considered needed clarification at the hearing should have been put in

the especificação as having been conceded.

State Counsel's comments on the complaint were lodged with the court

on 27 January.

23. On 2 February 1984, the registrar submitted the file to the

court, and on 12 April the judge dismissed the complaint, apologising

for the delay caused by his absence abroad on official business from

January to March. He acknowledged that the applicant's arguments were

lent support by a learned article and by a court decision at first

instance; but the latter had been set aside by the Oporto Court of

Appeal on 7 June 1983, and he stated his agreement with that court's

decision: State Counsel's Office had less opportunity to meet those it

represented, particularly where the defendant was a State body. In

addition, the law, in order to be fair, sometimes had to treat the

parties differently if they were not to be equal on paper only; the

principle of equality of arms entailed compensating for initial

inequality - for example, by providing legal aid or setting more

generous time-limits in the case of persons resident in a distant

country or whose whereabouts were unknown.

24. On 8 May 1984, this decision was communicated to Mr. Baraona,

who on 10 May 1984 lodged notice of an interlocutory appeal against it

to the Supreme Administrative Court.

On 17 May, the Administrative Court decided to forward the appeal to

the higher court together with the entire case file and to give it

suspensive effect.

In his statement of grounds of appeal dated 5 June, the applicant put

forward substantially the same arguments as in the complaint he had

made to the Administrative Court of Lisbon on 20 January. On 20 and

24 July 1984, State Counsel and the latter court submitted their

observations on the appeal.

25. The file reached the Supreme Administrative Court in

October 1984, whereupon State Counsel was asked to submit his opinion,

and two judges of the court then drew up their report.

On 21 March 1985, the Supreme Administrative Court dismissed both

interlocutory appeals, of 29 September 1982 and 10 May 1984.

With regard to the first appeal, against the Administrative Court's

decision of 27 July 1982, the Supreme Court found that on

11 February 1983 the judge below had himself rectified the situation

by rescinding the impugned decision and excluding all pleadings

submitted after 27 July 1982 as being out of time.

With regard to the second appeal, against the Administrative Court's

decision of 12 April 1984, the Supreme Court ruled that, contrary to

the applicant's contention, Article 485 sub-paragraph (b) of the Code

of Civil Procedure had not been abrogated by Article 6 § 1 (art. 6-1)

of the Convention. The State was in any case differently placed from

private companies. Accordingly, not all Mr. Baraona's submissions as

to the facts were to be regarded as having been conceded; it was for

the Administrative Court to consider them in the light of evidence

adduced at the hearing.

26. On 8 April 1985, the applicant appealed against this decision

(acordão) to the Constitutional Court, asking it to rule whether

Article 485 sub-paragraph (b) was still in force.

The Constitutional Court registered the appeal on 16 April 1985. The

applicant and State Counsel filed their pleadings on 15 July and

24 October 1985 respectively. State Counsel submitted that the court

had no jurisdiction, as no breach of the Constitution had been alleged

by the applicant either at first instance or before the Supreme

Administrative Court. Mr. Baraona replied on 12 November 1985 that a

breach of the principle of equality of arms was contrary both to the

Convention and to the Constitution.

On 5 March 1986, the Constitutional Court dismissed the objection and

proceeded to consider the question of the principle of equality of

arms. In a judgment on 19 November 1986, it dismissed the appeal, and

the applicant immediately challenged the judgment as being null and

void; but it was confirmed on 14 January 1987.

27. The proceedings in the Administrative Court of Lisbon have

since resumed and are at the preliminary stage.

II. Law governing the State's non-contractual liability

28. Following the revolution of 25 April 1974, the "Armed Forces

Movement" promulgated Law no. 3/74, of 14 May, which upheld the

existing schedule of basic rights and freedoms in the 1933

Constitution and also laid down fundamental principles concerning

judicial independence and defence rights. Article 8 § 17 of the 1933

Constitution recognised "the right to reparation for actual

infringements of rights"; as to non-pecuniary damage, statutory

provision could be made for financial compensation.

Most of the existing provisions of civil and criminal law were

retained, in particular Legislative Decree no. 48.051 of

21 November 1967 on the State's non-contractual liability.

By Legislative Decree no. 36/75 of 31 January 1975, the powers of the

"Commission for co-ordinating the disbandment of the PIDE/DGS and

the LP" - a commission which had been set up pursuant to an order

(despacho) issued by the Army Chief of Staff on 7 June 1974 - cover

the preparation of proceedings against individuals who belonged to the

relevant police forces or collaborated with them (Article 2 § 3); the

chairman of the Commission had the same powers as those conferred on

commanding officers of the military regions under the Military

Criminal Code (Article 2 § 4).

29. By Article 21 of the Constitution of 25 April 1976:

"1. The State and other public bodies shall be jointly and severally

liable in civil law with the members of their agencies, their

officials or their agents for actions or omissions in the performance

of their duties, or caused by such performance, which result in

violations of rights, freedoms or safeguards or in prejudice to

another party.

2. Wrongly convicted persons shall have a right to retrial and to

compensation for damage sustained, on conditions to be laid down by

law."

The Constitution was amended by Constitutional Law no. 1/82 of

27 September 1982, Article 22 of which reproduces the foregoing

Article 21 § 1 unchanged, however.

30. The Civil Code of 1966, which is still in force, deals with

the State's civil liability but only in respect of acts of "private

administration" (Article 501). As regards acts of "public

administration", Legislative Decree no. 48.051 of 21 November 1967

contains provisions on the non-contractual liability of the State and

other public bodies for acts due to negligence, abuse of authority or

deceit by their agencies or officials. The most important of these

are as follows:

"Article 2

1. The State and other public bodies shall be liable to third

parties in civil law for such breaches of their rights or of legal

provisions designed to protect the interests of such parties as are

caused by negligent acts (actos ilicitos culposamente praticados) of

their agencies or officials in the performance of their duties or as a

consequence thereof.

2. Where any compensation is paid pursuant to the previous

paragraph, the State and other public bodies shall have a right of

recourse against the members of the agency or the officials at fault

if they failed to act with proper diligence.

Article 3

1. Members of the agency and officials of the State and other

public bodies shall be liable to third parties in civil law for

unlawful acts in breach of their rights, or of legal provisions

designed to protect the interests of such parties, where they have

exceeded their powers or if they acted with wrongful intent in

exercising them.

2. The public body shall always be jointly liable with the

members of the agency or the officials concerned for acts performed

with wrongful intent.

Article 4

1. The negligence (culpa) of the members of the agency or of the

officials concerned shall be assessed in accordance with Article 487

of the Civil Code.

2. Where more than one person is liable, Article 497 of the Civil

Code shall apply.

Article 5

1. The right to compensation under the foregoing provisions shall

be time-barred after expiry of the periods laid down in the Civil

Code.

2. Limitation of actions by the State to enforce its right of

indemnity is likewise governed by civil law.

..."

31. Under the Administrative Code, actions for damages in respect

of liability of public authorities come within the jurisdiction of the

administrative courts (auditores - Articles 815 and 820). With the

exception of certain rules regarding locus standi and limitation

(Articles 824 and 829), Article 852 explicitly refers to the

provisions governing ordinary civil procedure.

Decisions of administrative courts are subject to appeal as to the

merits, interlocutory appeal and complaint (Article 853). Certain

interlocutory appeals have a suspensive effect and must be referred

forthwith to the Supreme Administrative Court, in particular those

made against a decision to dismiss a complaint against a preliminary

decision (Article 859 sub-paragraph (d)), while others must be

forwarded with the case file when the final decision is appealed, and

have no suspensive effect (Article 860).

32. The procedure in question must therefore comply with the rules

in the Code of Civil Procedure.

Article 484 § 1 of the Code provides that "if the defendant fails to

submit pleadings in reply notwithstanding the proper issue of a

summons ..., the facts as pleaded by the plaintiff shall be deemed to

have been admitted".

Article 485 lays down certain exceptions to this principle, however;

in particular, sub-paragraph (b) states that the rule does not apply

where the defendant is a legal person.

Under Article 486 § 1 the defendant has twenty days in which to reply

to the claim, but paragraph 3 of the same Article provides:

"State Counsel shall be granted more time when he needs information he

cannot obtain within the time-limit or when he is awaiting a reply

from a higher authority. The extension may not exceed six months

unless exceptional cause is shown."

Article 490 § 1 of the Code of Civil Procedure stipulates that "the

defendant shall reply clearly to each item of fact in the originating

application; items not expressly (especificadamente) disputed shall be

regarded as agreed between the parties except where obviously

inconsistent with the defence as a whole, or not capable of being

admitted, or provable only by written document".

By paragraph 4, however, this provision applies neither to defence

counsel assigned by the court nor to State Counsel.

Under Article 511 § 2, once the parties have been informed of the

preliminary decision they may make "any complaints they wish about the

list of the facts agreed by the parties or the list of matters to be

clarified at the hearing on grounds of procedural irregularity

(deficiência), irrelevance (excesso), complexity or obscurity".

PROCEEDINGS BEFORE THE COMMISSION

33. In his application of 6 September 1982 to the Commission

(no. 10092/82), the applicant complained of the length of the

proceedings instituted by him on 30 July 1981 in the Administrative

Court of Lisbon, which were still pending at first instance. He

relied on Article 6 § 1 (art. 6-1) of the Convention.

34. The Commission declared the application admissible on

5 October 1984. In its report of 8 October 1985 (made under

Article 31) (art. 31), it unanimously held that there had been a

violation of Article 6 § 1 (art. 6-1). The full text of the

Commission's opinion is reproduced as an annex to this judgment.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)

35. The applicant complained of the length of time taken to try

the action he brought against the State in the Administrative Court of

Lisbon on 30 July 1981; he alleged a breach of Article 6 § 1

(art. 6-1) of the Convention, which provides:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time by [a]

... tribunal ..."

A. Applicability of Article 6 § 1 (art. 6-1)

36. The Commission and the applicant were of the view that this

provision was applicable in that the action was for compensation for

damage a public servant caused by an act which infringed the

applicant's rights - in particular his right to liberty and his right

of property.

37. The Government contended, on the contrary, that Article 6 § 1

(art. 6-1) was not material. In their submission, the impugned

measure - the warrant issued on 17 May 1975 for Mr. Baraona's arrest

(see paragraph 9 above) - had no basis in Portuguese law at that time.

Accordingly, it could not give rise to liability on the part of the

State or entail any civil obligations on it independent of the

obligations of the chairman of the "Commission for co-ordinating the

disbandment of the PIDE/DGS and the LP", who had signed the warrant.

The position in the instant case, they claimed, was that an act had

been carried out against the background of a revolution. The damage

which flowed from it could not therefore be looked at in the context

of the general doctrine of the State's non-contractual liability; it

came within the ambit of public-law relations between the victim and

the State.

In short, the respondent State did not deny all responsibility for

excesses committed during the period of the revolution, but considered

that the problem had to be approached from a different angle. It

maintained that in the absence of any special law on the subject, it

had not yet decided on the necessary measures to compensate victims of

such excesses.

The Government thus seemed to be denying not only that the right was a

"civil" one but even that the right existed at all in domestic law.

1. Existence of a dispute ("contestation") over a right

38. That there is a dispute is not open to question. The dispute

is over whether or not Mr. Baraona has any right at all to recover

financial compensation for the damage flowing from the warrant for his

arrest issued in 1975 (see paragraphs 9-11 above).

39. The respondent Government recognised that two "attitudes" to

the matter are "conceivable" (memorial to the Court, section III,

paragraph 1.5).

On the first view, which the Government take, the democratic State

founded on the rule of law, which was established by the Constitution

of 25 April 1976, cannot be held liable for excesses during the period

of the revolution.

On the second view, taken by the applicant, the fundamental rights set

forth in the 1933 Constitution were confirmed by Law no. 3/1974,

promulgated by the "Armed Forces Movement" on 14 May 1974;

furthermore, Legislative Decree no. 48.051 of 21 November 1967, which

contains provisions on the non-contractual liability of the State and

other public bodies for acts of "public administration", has never

ceased to be in force.

On the basis of this second argument, the applicant considers that the

impugned arrest warrant, which was issued by a public servant (the

chairman of the "Commission for co-ordinating the disbandment of the

PIDE/DGS and the LP") acting as such, gave rise to civil liability on

the part of the Portuguese State.

40. There is no doubt that the return to democracy from April 1974

onwards caused Portugal to reorganise its social and political

structure in difficult circumstances unequalled in other European

countries, and tribute must be paid to the efforts made by the

Portuguese people to consolidate democracy (see, mutatis mutandis, the

Guincho judgment of 10 July 1984, Series A no. 81, p. 16, § 38).

However, it is not for the Court to assess either the merits of the

applicant's claim under Portuguese legislation or the influence that

the revolutionary situation resulting from the events of April 1974

may have had on the application of that legislation; such questions

fall within the exclusive jurisdiction of the Portuguese courts.

41. It is sufficient for the Court to note that the applicant

could claim on arguable grounds to have a right that is recognised

under Portuguese law as he understands it (see, among other

authorities, the James and Others judgment of 21 February 1986,

Series A no. 98, p. 46, § 81).

In this connection, it points out, as the Commission did, that the

Administrative Court of Lisbon gave a preliminary decision on

30 December 1983 declaring the case to be admissible (see paragraph 21

above) and that State Counsel did not appeal.

2. Whether the right is a civil right

42. As to whether the right is a "civil" right, the Court refers

to its established precedents, which the Government, moreover, did not

challenge (see, among other authorities, the König judgment of

28 June 1978, Series A no. 27, pp. 31-32, §§ 91-95; the Sporrong and

Lönnroth judgment of 23 September 1982, Series A no. 52, pp. 29-30,

§§ 79-80; and the Zimmermann and Steiner judgment of 13 July 1983,

Series A no. 66, p. 10, § 22).

From these precedents it emerges among other things that the concept

of "civil rights and obligations" is not to be interpreted solely by

reference to the respondent State's domestic law (see the König

judgment previously cited, Series A no. 27, pp. 29-30, §§ 88-89) and

that Article 6 § 1 (art. 6-1) applies irrespective of the status of

the parties, as of the character of the legislation which governs how

the dispute is to be determined and the character of the authority

which is invested with jurisdiction in the matter; it is enough that

the outcome of the proceedings should be "decisive for private rights

and obligations" (see the Ringeisen judgment of 16 July 1971, Series A

no. 13, p. 39, § 94).

43. It is therefore not decisive that, with regard to the State's

civil liability, Portuguese law distinguishes between acts of "private

administration" covered by Article 501 of the Civil Code and acts of

"public administration" dealt with in Legislative Decree no. 48.051 of

1967 (see paragraph 30 above); or that disputes concerning the latter

come within the jurisdiction of the administrative courts (see

paragraph 31 above). In any case, the Portuguese State's liability

for acts of "public administration" is based on the general principles

of civil liability set out in the Civil Code, and the administrative

courts follow the Code of Civil Procedure in the matter (see

paragraphs 30 and 31 above).

44. The right to compensation asserted by the applicant is a

private one, because it embodies a "personal and property" interest

and is founded on an infringement of rights of this kind, notably the

right of property (see, mutatis mutandis, the Zimmermann and Steiner

judgment previously cited, Series A no. 66, p. 10, § 22). The arrest

warrant complained of caused Mr. Baraona to flee to Brazil with his

family, abandoning his house, all his property and his business, which

was eventually declared insolvent (see paragraphs 9-10 above).

Article 6 § 1 (art. 6-1) of the Convention accordingly applies.

B. Compliance with Article 6 § 1 (art. 6-1)

45. It remains to be ascertained whether the case has been heard

within a "reasonable time".

The applicant and the Commission submitted that it had not been; the

Government disagreed.

1. Period to be considered

46. The action in the Administrative Court of Lisbon was brought

by the applicant on 30 July 1981 (see paragraph 11 above), and that

court has still not determined the merits of the case. The

proceedings have therefore already lasted six years, which seems a

considerable length of time in view of the preliminary nature of the

decisions taken so far; a review of the way the proceedings were

conducted is accordingly called for under Article 6 § 1 (art. 6-1).

2. Criteria to be used in assessing the reasonableness of the time

taken

47. 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, in

particular the complexity of the case, the behaviour of the applicant

and the conduct of the relevant authorities (see, among other

authorities, the Zimmermann and Steiner judgment previously cited,

Series A no. 66, p. 11, § 24).

48. The impugned proceedings were governed by the provisions of

the Portuguese Code of Civil Procedure, under which it is for the

parties - in the instant case, the applicant and State Counsel -

to take the initiative. This did not, however, absolve the

Administrative Court from ensuring that the proceedings made proper

headway (see the Guincho judgment previously cited, Series A no. 81,

p. 14, § 32, and the Capuano judgment of 25 June 1987, Series A

no. 119, § 24). It should furthermore be noted that Mr. Baraona

protested against the extensions of time granted by the court (see

paragraphs 14-17 above).

(a) Complexity of the case

49. The Government prayed in aid the fact that the case was a very

complex one; they claimed that State Counsel had been obliged to seek

a succession of extensions because he had had trouble obtaining the

necessary documents, as the facts of the case went back to the time of

a revolution; to that were added difficult legal issues and State

Counsel's need to adopt a common policy for similar cases.

50. The Court considers, as the Commission did, that the case

involved points of fact and law of some complexity. In particular,

the applicant's interlocutory appeal (of 10 May 1984) raised a

difficult question, which was dealt with at three levels of

jurisdiction over a period of nearly three years, namely equality of

arms in the proceedings complained of (see paragraph 24 above).

Even so, the procedural steps taken hitherto by the Administrative

Court, such as the decision of 30 December 1983 (see paragraph 21

above), have been of a preliminary nature and thus do not justify the

time that has elapsed.

(b) Behaviour of the applicant

51. Mr. Baraona did not complain of the various extensions of time

granted to State Counsel until 30 July 1982, almost a year after State

Counsel had been asked to file his pleadings (see paragraph 14 above).

In his submission, however, it would have been pointless to take such

a step any earlier, as the said extensions were based on domestic law

(see paragraph 32 above).

In this connection, the Court notes that the Administrative Court of

Lisbon did not set aside the decision of 27 July 1982 until

11 February 1983 (see paragraph 20 above), nearly three months after

State Counsel had finally submitted his pleadings.

52. In the Government's view, the fact that the court had still

not determined the merits of the case was attributable to the parties,

who had availed themselves of their procedural rights.

53. The actions of State Counsel cannot be blamed upon the

applicant but can certainly be held against the State, as they were

taken by one of its agencies (see paragraphs 54-56 below).

For his part, Mr. Baraona lodged two interlocutory appeals.

The first of these, on 29 September 1982, did not have any suspensive

effect and did not therefore prolong the proceedings

(see paragraph 15 above).

The same is not true of the second interlocutory appeal, which was

lodged on 10 May 1984 (see paragraph 24 above) and halted the

proceedings for nearly three years. Mr. Baraona contended in his

appeal that once State Counsel's pleadings were excluded from the file

(see paragraph 20 above), all the facts pleaded in his own statement

of claim had to be presumed to have been admitted by State Counsel in

virtue of the principle of equality of arms enshrined in Article 6 § 1

(art. 6-1) of the Convention, which he argued had abrogated

Article 485 sub-paragraph (b) and Article 490 § 4 of the Code of Civil

Procedure (see paragraph 32 above).

A decision in the applicant's favour could therefore have had an

influence on the outcome of the proceedings, since it would have

simplified the Administrative Court's task. Such a step was in any

case necessary if Mr. Baraona wished to exhaust domestic remedies in

order to bring the issue of equality of arms before the Convention

institutions (see the Commission's decision of 5 October 1984 on the

admissibility of the application, Decisions and Reports no. 40).

This interlocutory appeal and the subsequent action to have the

Constitutional Court's decision set aside (see paragraph 26 in fine

above), although both justified, nevertheless complicated the

proceedings to some extent (see paragraph 50 above).

(c) Conduct of the relevant authorities

54. In the Commission's view, the main cause of delay lies in

State Counsel's five applications for an extension of time.

The Court notes that on 31 July 1981 the Administrative Court of

Lisbon issued a summons to State Counsel requesting him to reply

within twenty days, in accordance with Article 486 § 1 of the Code of

Civil Procedure (see paragraph 11 above). State Counsel did not in

fact file his pleadings until 18 November 1982, having secured several

extensions of time pursuant to Article 486 § 3 (see paragraph 32

above). On 11 February 1983, however, the Administrative Court

revoked the extension of time granted on 27 July 1982, because State

Counsel's application was too vague. It consequently decided to

exclude as having been filed out of time all pleadings submitted by

the parties after that date, including State Counsel's (see

paragraph 20 above). After a year and a half, therefore, the

proceedings were back where they had started.

The Administrative Court subsequently ordered the original of the

arrest warrant to be produced (see paragraph 21 above), but to no

effect. It did not give its preliminary decision until

30 December 1983, after awaiting production of the warrant for ten

months.

On 20 January 1984, Mr. Baraona lodged a complaint against this

decision. It was forwarded to the judge on 2 February, but he did not

dismiss it until two months afterwards, on 12 April, explaining that

he had been abroad (see paragraphs 22-23 above).

While the subsequent proceedings in the Supreme Administrative Court

and the Constitutional Court are not open to any criticism, the three

periods the Court has just indicated amount to more than two years,

and could be justified only by very exceptional circumstances (see

the Guincho judgment previously cited, Series A no. 81, p. 15, § 36).

55. In the Government's submission, the impugned applications for

extensions of time were legitimate in view of the complexity of the

case and were based on Portuguese legislation, so that the time which

elapsed on account of them could not be taken into consideration in a

review of the length of the proceedings.

56. The Court has already considered the complexity of the case

(see paragraph 50 above). As to the Government's other argument, the

Court finds it equally unconvincing. The fact that domestic

legislation allows State Counsel to seek an extension of time does not

exclude the State's responsibility for resultant delays; State Counsel

could have refrained from making such applications, or the

Administrative Court could have refused them - as it in fact did on

11 February 1983.

3. Conclusion

57. In short, neither the complexity of the case nor the

applicant's behaviour had any marked influence on the length of the

proceedings, which resulted mainly from the way in which the relevant

authorities conducted the case.

The "reasonable time" referred to in Article 6 § 1 (art. 6-1) of the

Convention has accordingly been exceeded.

II. APPLICATION OF ARTICLE 50 (art. 50)

58. Article 50 (art. 50) of the Convention provides:

"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."

A. Damage

59. Mr. Baraona claimed 8,000,000 Portuguese escudos in interest

for delay, at the rate of 23%, on the amount of the compensation

sought by him from the Government in the pending national proceedings

and on the basis of the five years these proceedings had already

lasted.

He also sought 5,000,000 escudos in respect of pecuniary and

non-pecuniary damage, claiming that the fact that the Portuguese

courts had not yet given a decision in his civil action had prevented

him from resettling in Portugal after having lost all his assets there

as a result of the arrest warrant complained of.

60. The Government pointed out that interest for delay could be

obtained in the domestic courts, which moreover took account of

inflation and currency erosion when determining the amount of

compensation. Furthermore, the length of the proceedings, they

claimed, had not caused the applicant any pecuniary damage, as he had

settled permanently in Brazil.

61. As regards interest for delay, the Court agrees with the

Commission: the Portuguese courts will have to award such interest

they if they find in favour of Mr. Baraona. At all events, the Court

cannot prejudge the outcome of the pending proceedings (see, among

other authorities, mutatis mutandis, the Bönisch judgment of

2 June 1986, Series A no. 103, p. 8, § 11).

As to the alleged pecuniary damage, it does not flow from the failure,

found in the present judgment, to hear the case within a "reasonable

time": the alleged impossibility of returning to Portugal stems from

the arrest warrant which caused the applicant to flee to Brazil and

leave all his property in Portugal. This, however, is precisely the

subject-matter of the action in the Administrative Court of Lisbon, on

whose outcome the Court cannot speculate.

On the other hand, the applicant has undeniably suffered non-pecuniary

detriment. After six years, he is still living in uncertainty as to

the outcome of the litigation in question and, accordingly, as to the

possibility of resettling in Portugal as he wishes. Assessing these

factors on an equitable basis as required by Article 50 (art. 50), the

Court awards him 500,000 escudos.

B. Costs and expenses

62. Mr. Baraona also claimed reimbursement of 1,000,000 escudos in

respect of costs and expenses incurred for his representation by two

lawyers before the Convention institutions, the sum being made up of

500,000 escudos for fees, 470,000 escudos for travel and subsistence

and 30,000 escudos for sundry expenses.

Relying on principles adopted in the matter by the Court in previous

cases (see, among many other authorities, the Bönisch judgment

previously cited, Series A no. 103, p. 9, § 15), the Government

considered that it was not necessary for two lawyers to be instructed.

63. The Government acknowledged that the case raised important

issues. In the Court's view, these could justify the attendance of

two lawyers at the hearing. The amount of the expenses occasioned by

their appearance in the proceedings before the Commission and the

Court and of the sundry expenses appears reasonable. On the other

hand, the Court finds that a sum of 400,000 escudos for fees is

sufficient in the circumstances of the case.

The applicant is thus entitled to be reimbursed a total of

900,000 escudos for costs and expenses.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that Article 6 § 1 (art. 6-1) of the Convention is

applicable in the instant case;

2. Holds that there has been a breach of that Article (art. 6-1);

3. Holds that the respondent State is to pay the applicant

500,000 (five hundred thousand) escudos for non-pecuniary damage and

900,000 (nine hundred thousand) escudos for costs and expenses;

4. Rejects 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 8 July 1987.

Signed: Rolv RYSSDAL

President

For the Registrar

Signed: Jonathan L. SHARPE

Head of Division in the

registry of the Court