Strategic use of judicial interaction technique (purpose aimed by the national court)
This decision aimed to guarantee a fundamental right of citizens, namely that provided for in article 20 (4) of the Portuguese Constitution - the right to a fair and equitable process. In addition, it combined the provision of the Constitution with Article 6 of the ECHR, with the aim of effecting a consistent interpretation between the Constitution and the ECHR.
It should be noted that Portugal has repeatedly been found to be in violation of Article 6 of the ECHR in terms of failure to comply with the "reasonable time" for a decision. For example, see these recent decisions:
Albertina Carvalho e Filhos Lda v. Portugal, of 4 July 2017
The applicant company has its registered office in Valongo, Portugal.
On 18 July 2005 the applicant company brought enforcement proceedings against M.C. before the Valongo Court, seeking payment of an alleged debt of 32,992.99 euros (EUR) plus EUR 18,413.35 in interest it considered to be due up to that date, amounting to a total sum of EUR 51,406. It also sought the payment of the interest accrued until the date of repayment of the debt in full.
This process would only come to an end in 2014.
The Court notes that the proceedings in the instant case lasted more than nine years for two levels of jurisdiction and were not of particular complexity.
Regarding the applicant company’s conduct, it appears from the case-file that on 14 January 2011 the Valongo Court could not contact the applicant company at the address it had provided to that court. The Court admits that this might have caused some delays in the proceedings. However, there is nothing therein to allow the Court to conclude that this caused a one-year delay, nor can the exact delay that might have been caused be determined.
As regards the conduct of the national authorities, the Court considers that the Government did not provide any explanation for some periods of inactivity on the part of the Valongo Court.
There has accordingly been a breach of Article 6 § 1.
Austin and Budiartini v. Portugal, of 25 July 2017
The applicants are husband and wife.
On 10 April 2007 Mr and Mrs G. initiated civil proceedings against the applicants before the Monção Court with a view to obtaining recognition of their ownership of a property and a declaration that the applicants had no right of way (servidão de passagem) over that property.
On 14 May 2007 the applicants were summonsed. On the same day the court was informed of the death of Mr G. and the proceedings were consequently suspended.
On an unknown date Mr G.’s eight heirs were admitted as parties to the proceedings (habilitação de herdeiros). The proceedings restarted on 19 June 2007.
Due to various circumstances, this process would only come to an end in May 2013.
Having examined all the material submitted to it, the Court considers that the case does not appear to have been particularly complex. Although the applicants were responsible for minor delays, the Court considers that the bulk of the delay occurred as a result of the manner in which the Monção Court handled the case. In particular, the Court notes that the first-instance judgment was issued on 3 March 2012 four years and ten months after the claim against the applicants had been lodged. The Court also notes, inter alia, that it took six months for the Monção Court to notify the applicants that they had failed to register their counterclaim with the Land Registry Office, and at least seven months to hold the videoconference.
Having examined all the material submitted, and having regard to its case-law on the subject, the Court considers that, in the instant case, the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
Accordingly, there has been a breach of Article 6 § 1.
Mateus Pereira da Silva v. Portugal, of 25 July 2017
In this case, we are talking about an inheritance case that began in 2004, in the Civil Court of Torres Novas, and ended in 2014. Due to this excessive time, the apllicant - Mateus Pereira da Silva - filed an application with the ECHR against the Portuguese Republic for (not only, but also) violation of Article 6.
The Court notes the proceedings at issue were not of particular complexity.
In so far as the applicant’s conduct is concerned, the Court notes that she took no steps which could have significantly contributed to the delay of the proceedings.
Turning to the conduct of the authorities, the Court observes some periods of inactivity on the part of the Torres Novas Civil Court for which the Government provided no explanation.
It is true that the proceedings were pending twice waiting for the claimant’s initiative in summoning the defendant’s heirs (see paragraphs 8 and 15 above). Nonetheless, in this context, the Court reiterates that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their judicial system in such a way that their courts can meet each of its requirements and avoid or reduce to the minimum the protraction of proceedings.
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, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
Oliveira Modesto and others v. Portugal, of 29 January 2019
In this case, we are dealing with insolvency proceedings, which, according to the ECHR's accounts, have lasted for 17 years and 11 months.
The Government argued that the length of the proceedings was mostly due to the fact that the Aveiro Court had accepted to act in the applicants’ interest at their request. They also argued that the insolvency proceedings had been delayed by the tax enforcement proceedings, as they were an obstacle to the sale procedure.
However, turning to the proceedings to liquidate the assets of company F., the Court observes that on 12 December 1997 former employees of company F., including some of the applicants, requested that the Aveiro Court wait for the approval of a site division and urban development plan that had been drawn up by the municipality of Aveiro before ordering the sale of company F.’s assets, hoping that the plan would lead to a rise in the value of the land and thus increase their prospects of recovering their debts. That request led the Aveiro Court to authorise the suspension of the sale of company F.’s assets on 7 November 2000. The proceedings could not be resumed until 29 July 2009, when the body of creditors, including the applicants, concluded an agreement with the Aveiro municipality and companies F. and G.
The Court accepts that this stage of the proceedings was of some complexity, owing to the number of parties involved. However, the Court considers that this element alone cannot explain the length of the proceedings.
In respect of the applicants’ conduct, the Court considers that they cannot be deemed responsible for any delays encountered since 30 July 2009.
Turning to the conduct of the national authorities, the Court notes that there were some periods of inactivity on the part of the judicial liquidator for which the Government have provided no explanation.
Even assuming that the liquidator enjoyed a considerable amount of operational and institutional independence and did not act as a State agent, thus not rendering the respondent State directly responsible for his acts, it cannot be overlooked that the domestic courts were responsible for ensuring that he complied with the relevant rules. Indeed, the liquidator was working in the context of judicial proceedings, supervised by a court which remained responsible for the preparation and speedy conduct of the trial.
The Court reiterates that it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of Article 6 § 1 of the Convention, and the Court finds that no convincing arguments have been adduced by the Government to show that the length of the proceedings complained of was reasonable as required by that provision.
The Court concludes that the State authorities bear primary responsibility for the excessive length of the proceedings in question from 30 July 2009 until 21 May 2018. There has accordingly been a breach of Article 6 § 1 of the Convention.
It is also worth mentioning this decision:
Dos Santos Calado and Other v. Portugal, of 31st March 2020
The cases concerned Portuguese nationals who complained about their appeals to the Constitutional Court being declared inadmissible.
The applicant had raised two issues in her appeal to the Constitutional Court; the first concerned the unconstitutionality of a legal rule while the second related to the unlawfulness of the rule in question. In both cases the applicant had relied on the same subsection of section 70(1) of the Institutional Law on the Constitutional Court (“the LOTC”) forming the basis for the Constitutional Court’s jurisdiction to hear appeals. The Court noted that the Constitutional Court had declared inadmissible the part of the applicant’s appeal relating to the unlawfulness of the legal rule, on the grounds that she had relied in her memorial on the incorrect subsection of the LOTC provision. The Court considered that the requirement to specify which subsection was being relied upon was lawful, as it was provided for by the same Law. Furthermore, it pursued the legitimate aim of ensuring respect for the rule of law and the proper administration of constitutional justice. The Court therefore had to ascertain whether the restriction had been proportionate in the present case. It noted that the Constitutional Court had been able to identify the two grounds of appeal submitted by the applicant. The inadmissibility decision had thus been based solely on the drafting error, as the ground of appeal had been clear from the applicant’s memorial and had been identified by the judges. Consequently, and in accordance with its case-law, the Court held that the approach taken by the Constitutional Court had been excessively formalistic, having deprived the applicant of a remedy afforded by domestic law in respect of the matter at issue.
In the alternative, the Court noted that the Constitutional Court could have requested the applicant to rectify the error, as provided for by the LOTC, given that the ground of appeal had been clear from her memorial.