EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 27329/95

Mats Wettergren and Anna-Lena Wessman

against

Portugal

REPORT OF THE COMMISSION

(adopted on 20 May 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 5) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6 - 21)              2

III. OPINION OF THE COMMISSION

(paras. 22 - 33) 4

A. Complaint declared admissible

(para. 22) 4

B. Point at issue

(para. 23) 4

C. As regards Article 6 para. 1 of the Convention

(paras. 24 - 32) 4

CONCLUSION

(para. 33) 5

APPENDIX I: PARTIAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION 6

APPENDIX II: FINAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION 9

I. INTRODUCTION

1. The present Report concerns Application No. 27329/95 introduced on 6 June 1994 against Portugal and registered on 15 May 1995.

The applicants are Swedish citizens, born in 1953 and 1959, respectively, and residing in Stockholm.

The applicants are represented before the Commission by Mr Jens Bengtsson , a lawyer practising in Stockholm.

The respondent Government are represented by their Agent, Mr António Henriques Gaspar , Deputy Attorney-General.

2. The application was communicated to the Government on 15 January 1997. Following an exchange of written observations, the complaint relating to the length of civil proceedings (Article 6 para. 1 of the Convention) was declared admissible on 22 October 1997. The decisions on admissibility are appended to this Report.

3. Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (Second Chamber), after deliberating, adopted this Report on 20 May 1998 in accordance with Article 31 para. 1 of the Convention, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

4. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Portugal.

5. The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. In 1987 the applicants and the Region of Madeira ( Região Autónoma da Madeira), represented by its Regional Government ( Governo Regional da Madeira), reached a cooperation agreement regarding the creation of a tropical bird garden on this Portuguese island.

7. By Resolution ( Resolução ) no. 1607/87 of 1 December 1987 the Regional Government granted the concession in the area to the applicants and in October 1988 the bird garden was opened to the public. However, by Resolution no. 743/91 of 11 July 1991, the Regional Government revoked Resolution no. 1607/87 and cancelled the agreement.  It was stated that the applicants had not fulfilled some parts of the agreement, namely payment of the rent and of the agreed percentage on the entrance fees.  Subsequently, the authorities took over the administration of the bird garden.

8. On 10 July 1992 the applicants initiated proceedings for damages against the Regional Government before the Administrative Tribunal (Tribunal Administrativo de círculo ) of Lisbon.

9. The Regional Government replied on 30 October 1992, maintaining that the proceedings, according to Portuguese law, should be taken against the Region of Madeira, the Regional Government being only the executive organ of the Region.

10. In their subsequent reply, on 17 November 1992, the applicants requested that the respondent party be changed to the Region of Madeira.

11. On 10 September 1993 the judge decided to transmit the file, for information ( visto ), to the Attorney-General's department ( Ministério Público ).

12. The representative of the Attorney-General's department examined the file and sent it back to the judge on 11 October 1993.

13. The Administrative Tribunal gave its judgment, without a hearing, on 7 October 1994.  It first considered that it was not legally possible to have the respondent party changed at the particular stage of proceedings when the applicants had made their request.  The Administrative Tribunal next found, agreeing with the Regional Government, that the action for damages could only be directed against the Region of Madeira.  The case was thus dismissed without an examination of the merits.

14. On 25 October 1994 the applicants appealed against this decision to the Supreme Administrative Court ( Supremo Tribunal Administrativo ).

15. On 22 November 1994 the applicants submitted their conclusions and on 20 January 1995 the Regional Government presented their reply.

16. Since the applicants had applied for legal aid, the Administrative Tribunal judge (before transmitting the file to the jurisdiction ad quem ) asked the Ministry of Foreign Affairs for information on the conditions in which the applicants could receive this legal aid.  To this end the Ministry sent several documents to the Tribunal on 19 May 1995.  These documents being in English, the judge asked the Attorney-General's Office ( Procuradoria-Geral da República ) to translate them and the translation was sent on 8 August 1995.

17. On 15 September 1995 the judge decided to request further information from the Ministry of Foreign Affairs on the legal aid question.  He stressed that, according to Portuguese law, legal aid could be granted to an applicant not residing in Portugal only on the condition of reciprocity. It was thus necessary to know if there was any agreement or convention between Portugal and Sweden on the matter.

18. On 21 January 1996 the judge again asked the Ministry for the same information. He also requested information from the Attorney-General's Office. The latter replied on 9 February 1996 and the former on 15 February 1996.

19. Legal aid was granted to the applicants on 11 March 1996.

20. On 24 April 1996 the file was transmitted to the Supreme Administrative Court.

21. The case is presently pending before the Supreme Administrative Court.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

22. The Commission has declared admissible the applicants' complaint that their case has not been heard within a reasonable time.

B. Point at issue

23. The only point at issue is whether the length of the proceedings complained of has exceeded the "reasonable time" requirement referred to in Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

24. The relevant part of Article 6 para. 1 of the Convention provides as follows :

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

25. The proceedings in question concern a claim for compensation for an alleged confiscation of possessions. The purpose of the proceedings is to obtain a decision in a dispute over "civil rights and obligations", and they accordingly fall within the scope of Article 6 para. 1 of the Convention.

26. These proceedings, which began on 10 July 1992 and which are still pending, have lasted to date five years and ten months.

27. The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Silva Pontes v. Portugal judgment of 23 March 1994, Series A no. 286-A, p. 15, para. 39).

28. The applicants maintain that the period in question is in violation of the "reasonable time" requirement.

29. According to the Government, the length of the period in question is mainly due to the applicants' conduct, in that they failed to give the domestic courts the relevant elements concerning their application for legal aid.

30. The Commission notes that the case is not particularly complex. Moreover, the applicants' conduct is not in itself sufficient to explain the length of the proceedings.  The Commission notes that the file was transmitted to the Supreme Administrative Court one year and six months after the introduction of the appeal. Even if one accepts, as claimed by the Government, that the applicants are partly responsible for this delay, the Commission observes that it was up to the domestic courts to decide on the application for legal aid. It follows that this delay is also imputable to the State. The Commission further notes that there have been other periods of inactivity, between 17 November 1992, when the defendant replied, and 10 September 1993, when the judge decided to transmit the file to the Attorney-General's department, and between 11 October 1993, when the Attorney-General's department sent the file back to the judge, and 7 October 1994, the date of the judgement.  The Commission considers that no convincing explanation for these delays has been advanced by the respondent Government.

31. The Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (cf. Eur. Court HR, Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).

32. In the light of the criteria established by the case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

33. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention.

    M.-T. SCHOEPFER                            J.-C. GEUS

      Secretary                                    President

to the Second Chamber                     of the Second Chamber