CARNEIRO DA SILVA v. PORTUGAL - 75415/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section Committee)) [2017] ECHR 253 (14 March 2017)

In the case of Carneiro da Silva 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 21 February 2017,

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

PROCEDURE

1. The case originated in an application (no. 75415/13) 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, Mr Abílio Manuel Carneiro da Silva (“the applicant”), on 22 November 2013.

2. The applicant was 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 8 June 2015 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1951 and lives in Vila Nova de Famalicão.

5. On 17 September 2003 he instituted inventory proceedings (processo de inventário) before the Vila Nova de Famalicão Court in order to obtain the division of the property of his great-uncle, J.C., who died in 1944.

6. On 26 November 2003 the administrator of the estate (cabeça-de-casal) gave statements (declarações da cabeça-de-casal) during the proceedings and on 27 January 2004 she identified at least fifty people as being J.C.’s heirs.

7. On 13 February and 13 June 2004 two additional groups of heirs sought to intervene in the proceedings as parties. The applicant was notified of these requests on 23 May 2005.

8. On 21 April 2004 the administrator of the estate submitted a list of J.C.’s assets (relação de bens) to the case-file; the applicant was notified of this on 20 September 2004.

9. On 20 June 2006 the court requested the administrator of the estate to make additional statements. Between that date and 3 September 2007 contact information with regard to some of the heirs was submitted by the administrator of the estate, the heirs who had sought to intervene in the proceedings were granted leave to do so (see paragraph 7 above), and land registry certificates were requested and added to the case-file.

10. On 18 February 2008 the company J.M.C. (hereinafter “J.M.C.”) lodged a request to be allowed to intervene in the proceedings.

11. Following some difficulties in summoning the heirs (many of the letters sent had been returned undelivered to the court), on 20 May 2009 the court managed to summon all heirs.

12. On 22 June 2009 the parties requested that a time-limit be set for the valuation of the property included in the inventory.

13. On 24 June 2009 the administrator of the estate requested permission to step down from his post for health reasons. On 15 October 2009 the court granted her request and appointed a new administrator of the estate.

14. On 24 March 2010 a meeting of the parties (conferência de interessados) took place. The court admitted J.M.C. as a party to the proceedings and appointed an expert to value the immovable property left by J.C. The meeting was postponed pending the expert’s report.

15. On 7 June 2010, after requesting an extension of the initial thirty-day time-limit, the expert submitted his report.

16. After J.M.C. criticised the expert’s report, on 9 March 2011 the expert submitted a second report.

17. On 21 March 2012 the expert was asked by the court to give information about the value of the properties, which he did on 9 May 2012.

18. Between 7 January 2008 and 18 April 2013, a meeting of the parties was scheduled, re-scheduled or postponed twelve times, the last of them for an unknown date.

19. Between 11 February 2008 and 18 April 2013 the court was informed four times of the deaths of parties to the proceedings. Procedural steps were taken to identify their heirs in order to continue the proceedings with those heirs as parties.

20. As the letters summoning some of the newly identified heirs had been returned to the court, between 10 September 2013 and 17 December 2013 more steps were taken in order to try to summon them.

21. On 6 February 2014 the administrator of the estate informed the court that she was unable to obtain information about the missing addresses of some of the heirs of a deceased party.

22. The court stayed the proceedings three times (on 12 February and 13 November 2014, and on 10 September 2015), ordering that they should not continue until one or more of the parties took the initiative to submit information regarding the addresses of some of the heirs.

23. According to the latest information received by the Court on 10 January 2016, on that date the proceedings were still pending at first instance.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

24. The applicant complained that the length of the 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 read as follows in the relevant parts:

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 ...”

25. The period to be taken into consideration began on 17 September 2003, when the applicant instituted the inventory proceedings, and has not yet ended. It has thus lasted thirteen years at one level of jurisdiction.

A. Admissibility

26. The Government argued that the application was inadmissible for non-exhaustion of domestic remedies. In their view, the applicant should have used the remedy provided for by Article 12 of Law no. 67/2007 of 31 December 2007, which set out the rules on the non-contractual civil liability of State and public entities (Lei n.º 67/2007, de 31 de Dezembro, que aprovou o Regime da Responsabilidade Civil Extracontratual do Estado e Demais Entidades Públicas).

27. The Court observes that prior to 27 May 2014, Portuguese practice did not provide for an effective legal remedy allowing a claimant to obtain compensation for excessive length of proceedings (see Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, §§ 51-57, 10 June 2008, and Valada Matos das Neves v. Portugal, no. 73798/13, § 106, 29 October 2015). On that date, the instant case had already been pending for over ten years.

28. Given that the application was lodged before the Court on 22 November 2013, thus before 27 May 2014, the case cannot be declared inadmissible for non-exhaustion of domestic remedies (see, mutatis mutandis, Valada Matos das Neves, cited above, § 107, with further references; see also Nouhaud and Others v. France, no. 33424/96, §§ 44 and 45, 9 July 2002).

29. The Court further notes that the application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Alleged violation of Article 6 § 1 of the Convention

30. The Government acknowledged that the proceedings had been subject to a delay and that their length had exceeded what could legitimately be expected. Nevertheless, they were of the opinion that the length of the proceedings in the present case had been caused by its complexity and the large number of parties and could not, for the most part, be attributable to the domestic court. According to the Government, the Portuguese authorities had only been responsible for the delay which had occurred approximately between mid-2005, when the applicant had been notified of the requests lodged by the additional group of heirs for permission to intervene in the proceedings (see paragraph 7 above), and mid-2006, when the court had requested additional statements from the administrator of the estate (see paragraph 9 above).

31. 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 applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

32. The Court considers that, despite the nature of the instant proceedings, they were of some complexity because of the number of parties involved in the proceedings and because they started fifty-nine years after the death of J.C. (see paragraphs 5 and 6 above) (contrast Freitas v. Portugal, nos. 8349/13 and 56418/13, 12 January 2016, § 49, where the inventory proceedings that had been instituted by one of the applicants were not of any particular complexity). However, the Court considers that the complexity of the proceedings alone cannot explain their length.

33. In respect of the applicant’s conduct, the Court considers that he cannot be deemed responsible for any delays encountered.

34. As regards the conduct of the national authorities, the Court notes that there were some periods of inactivity on the part of the Vila Nova de Famalicão Court for which the Government provided no explanation - namely, with regard to notifications sent to parties (see paragraphs 7 and 8 above) and the adoption of decisions admitting parties to the proceedings (see paragraphs 7, 9, 10 and 14 above).

35. In addition, the Court observes that between 12 February 2014 and 10 September 2015 the court three times stayed the proceedings (see paragraph 22 above). According to the last information received by the Court, the proceedings remain stayed pending any initiative on the part of one or more of the parties to submit information regarding the addresses of some of the heirs (see paragraphs 22 and 23 above). In this regard, the Court reiterates that even in legal systems applying the principle that the procedural initiative lies with the parties, the latter’s attitude does not absolve the courts of the obligation to ensure the expeditious trial requirement by Article 6 § 1 (see Santos Silva v. Portugal, no. 52246/12, 30 April 2015, § 29, with further references).

36. Having examined all the material submitted to it and having regard to its case-law on the subject (see Martins Castro and Alves Correia de Castro, cited above), the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

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

2. Alleged violation of Article 13 of the Convention

38. The applicant further complained of the fact that in Portugal there was no court to which an application could be made to complain of the excessive length of proceedings.

39. The Court reiterates 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).

40. The Court notes that prior to 27 May 2014 (see paragraphs 27 and 28 above) the applicant did not have at his disposal an effective remedy by which to submit his length-of-proceedings complaint. On that date, the instant case had already been pending for over ten years.

41. Having regard to its case-law on the subject (Martins Castro and Alves Correia de Castro, cited above, §§ 51-57, and Valada Matos das Neves, cited above, § 106, the Court considers that the applicant had no effective remedy against the excessive length of the proceedings.

42. Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby, at the time when she lodged her application, the applicant could have obtained a ruling upholding her right to have her case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

43. 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

44. The applicant claimed 17,000 euros (EUR) in respect of non-pecuniary damage.

45. The Government contested the claim.

46. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 13,000 under that head.

B. Costs and expenses

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

48. The Government contested the claim.

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

C. Default interest

50. 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. Declares the application admissible;

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

3. Holds

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

(i) EUR 13,000 (thirteen thousand 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 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 March 2017, 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 >> CARNEIRO DA SILVA v. PORTUGAL - 75415/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section Committee)) [2017] ECHR 253 (14 March 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/253.html Cite as: ECLI:CE:ECHR:2017:0314JUD007541513, [2017] ECHR 253, CE:ECHR:2017:0314JUD007541513