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THE FACTS

The applicant, Ms Ana Maria Paulino Tomás, is a Portuguese national who was born in 1970 and lives in Caldas da Rainha (Portugal). She was represented before the Court by Ms A.P. de Carvalho, of the Caldas da Rainha Bar, who appeared on her behalf at the hearing on 27 March 2003. The respondent Government were represented at the hearing by their Agent, Mr J. Miguel, Deputy Attorney-General, assisted by Ms M.M. Flores Ferreira, Deputy Attorney-General and coordinator of the Administrative Proceedings Division of the Central Administrative Court.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 17 May 1993 the applicant brought an action for damages against two private individuals and the Motor Insurance Fund (“the Fund”) in the Caldas da Rainha District Court after suffering a road accident. She also applied for legal aid.

On 25 May 1993 the court summoned the defendants to appear.

The Fund filed pleadings in reply on 13 July 1993. One of the other defendants filed his pleadings on 14 July 1993 and also applied for legal aid.

In an order of 10 February 1995 the court requested information from the police authorities about the financial and social circumstances of the applicant and the defendant who had applied for legal aid. The National Republican Guard replied on 26 May 1995.

On 26 June 1995 the court gave a preliminary decision ( despacho saneador ) setting out the facts that had already been established and the matters remaining to be clarified. It also awarded legal aid to the applicant and the defendant who had applied for it.

After the registry of the Caldas da Rainha District Court had realised that the applicant had not been notified either of the defendants’ pleadings in reply or of the preliminary decision, the court directed on 15 February 1996 that those documents should be served on her.

On 30 September 1996 the applicant submitted a list of the witnesses she wished to have examined. She also asked the court to order an insurance company and the Caldas da Rainha medical centre to produce certain documents and requested an expert medical opinion. The court allowed her requests on 28 October 1996.

The Caldas da Rainha medical centre produced the requisite documents on 30 January 1997. The insurance company did so on 2 December 1997, after the court had fined it for failing to comply with its order in good time.

In an order of 30 January 1998 the court announced that the appointment of the experts would take place on 9 February 1998. The experts carried out the examination on 20 May 1998 and submitted their report on 2 June 1998.

On 30 June 1998 the court set the case down for hearing on 25 November 1998. However, the hearing could not take place on that date because counsel for one of the defendants was absent. It was postponed until 26 April 1999 but could not take place on that date either, as the District Court was occupied with the taking of evidence from witnesses in a criminal case. The hearing finally took place on 16 November 1999.

In a judgment of 4 January 2000 the District Court allowed the applicant’s claims in part.

B. Relevant domestic law and practice

1.  The Constitution

Article 20 § 4 of the 1976 Constitution enshrines the right to a “judicial decision within a reasonable time”.

Article 22 also defines the civil liability of the State and its authorities and agents in the following terms:

“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. Legislative Decree no. 48051 of 21 November 1967

Legislative Decree no. 48051 governs the State’s non-contractual civil liability. It contains the following provisions of relevance to the instant case:

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 unlawful acts committed with negligence ( culpa ) by their agencies or officials in the performance of their duties or as a consequence thereof.”

Article 6

“For the purposes of this Decree, legal transactions which infringe statutory provisions and regulations or generally applicable general principles, and physical acts which infringe such provisions and principles or the technical rules and rules of general prudence that must be observed, shall be deemed unlawful.”

Article 7

“The obligation on the State and other public bodies and on members of their agencies and their officials to pay compensation shall not be contingent on the victims’ use of their right of appeal against the measures that gave rise to the damage; however, the right to compensation shall be available only if the damage is not attributable to the failure to lodge an appeal or to negligence in the conduct of proceedings after an appeal has been lodged.”

In accordance with the case-law concerning the State’s non-contractual liability, the State is required to pay compensation only if an unlawful act has been committed with negligence and there is a causal link between the act and the alleged damage.

Article 498 of the Civil Code provides that the right to compensation is time-barred after the expiry of a period of three years from the date on which the victim becomes, or should have become, aware of the possibility of exercising that right.

3.  Relevant case-law of the Portuguese courts

The Supreme Administrative Court’s decision of 7 March 1989 in the case of Garagens Pintosinho, Lda was for a long time the only example of the application of Legislative Decree no. 48051 to the length of proceedings . Referring to the judgments of the European Court of Human Rights in the cases of Guincho v. Portugal (10 July 1984, Series A no. 81), Baraona v. Portugal (8 July 1987, Series A no. 122) and Martins Moreira v. Portugal (26 October 1988, Series A no. 143), the Supreme Administrative Court considered that the excessive length of proceedings was to be regarded as an unlawful act meriting compensation. The main period in issue in the Garagens Pintosinho, Lda case was the five years it took for the Lisbon industrial tribunal to deliver a judgment that should have been given within a statutory period of three days.

Subsequently, on 15 October 1998, the Supreme Administrative Court gave a ruling in the case of Pires Neno , concerning civil proceedings that had lasted almost seven years for one level of jurisdiction. The appellants in that case had also lodged an application with the European Commission of Human Rights complaining of the length of those proceedings. Their application had resulted in the adoption by the Committee of Ministers of the Council of Europe of a resolution awarding them 540,000 Portuguese escudos (PTE) by way of just satisfaction. The Supreme Administrative Court allowed their claims in part and ordered the State to pay them PTE 900,000 in compensation, less the above-mentioned sum of PTE 540,000. Referring to the Strasbourg Court’s case-law, it considered, in particular, that the State incurred non-contractual civil liability for the non-pecuniary and pecuniary damage resulting from the unlawful and negligent administration of justice in breach of Article 20 of the Constitution and Article 6 § 1 of the Convention. The judgment was published and commented on in the legal journal Cadernos de Justiça Administrativa (no. 17, September/October 1999).

The Supreme Administrative Court gave a similar decision on 1 February 2001 in the case of Alecarpeças, Lda , concerning the delay with which a court’s instructions had been carried out in enforcement proceedings. The court pointed out that failure to comply with procedural deadlines was not in itself an unlawful act but that it became unlawful if Article 6 § 1 of the Convention was breached at the same time.

Lastly, the Coimbra Administrative Court, in a judgment of 14 July 1999 that was not contested by the State, likewise allowed a claim for damages on the basis of the State’s non-contractual liability for the excessive length of proceedings concerning an objection to an enforcement measure that had already been carried out.

According to a statistical table produced by the Government, twenty-five actions to establish non-contractual liability on the part of the State for the excessive length of proceedings had been brought before the administrative courts. In four of them the courts had found against the State, and in four others the applicants’ claims had been dismissed. The proceedings are still pending in seventeen cases; in two of them, the first-instance court has found against the State, which has subsequently appealed to the Supreme Administrative Court.

4. Bills nos. 95/VIII and148/IX

In July 2001 the Government tabled Bill no. 95/VIII in Parliament, concerning the State’s non-contractual civil liability and repealing Legislative Decree no. 48051.

The explanatory memorandum on the bill stated, inter alia , that “for the first time in Portuguese law”, there was a statute dealing comprehensively with the State’s non-contractual liability for damage resulting from the performance of political, legislative, administrative and, “for the first time in Portugal”, judicial duties. It pointed out that it had been “thought helpful to incorporate into law various conclusions reached by the courts over the course of time”.

Clauses 7 to 10 of the bill governed the State’s liability for damage caused in the performance of its administrative duties. Clause 7 (2) and (3) explicitly introduced the concept of “administrative fault” or “official error”.

Clause 12 of the bill provided, inter alia :

“... the rules on liability for unlawful acts committed in the performance of administrative duties shall apply to damage caused by the unlawful administration of  justice, particularly in the case of a violation of the right to a judicial decision within a reasonable time.”

The bill lapsed as a result of the dissolution of Parliament.

On 21 November 2002, however, the new Parliament passed on its first reading Bill no. 148/IX, tabled by members of the Socialist Party, which reproduced in full the explanatory memorandum to and the text of Bill no. 95/VIII.

The bill still has to be approved on its second reading.

5. Circular no. 11/2002 issued by the Attorney-General

On 20 December 2002 the Attorney-General issued a circular to all officials and members of his department. He instructed them not to challenge the administrative courts’ jurisdiction ratione materiae to deal with actions to establish non-contractual liability on the part of the State for the excessive length of proceedings.

By Article 76 of the Regulations on the Attorney-General’s Department, all officials and members of the department are required to abide by the circular.

COMPLAINT

Relying on Article 6 § 1 of the Convention, the applicant complained of the length of the compensation proceedings instituted by her.

THE LAW

The applicant submitted that the length of the proceedings in issue had infringed Article 6 § 1 of the Convention, which provides, inter alia :

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a]... tribunal ...”

The Government objected at the outset that domestic remedies had not been exhausted. They submitted that it was clear from the case-law of the Supreme Administrative Court that the State incurred non-contractual civil liability for violations of the right to a decision within a reasonable time and was therefore under an obligation to compensate victims.

The Government argued that an action to establish non-contractual liability, as provided for in Legislative Decree no. 48051 of 21 November 1967, was an accessible, sufficient and effective means of remedying the situation complained of by the applicant. In their submission, the remedy’s effectiveness could not be contested purely on the basis of statistical data.

The Government considered that a distinction should be made between means of prevention, such as those enabling proceedings to be expedited, whose fundamental aim was to prevent violations or put an end to them immediately, and means of redress, which concerned violations that had already occurred. In the instant case, as the alleged violation had already occurred, the only issue was whether the applicant had had an effective means of obtaining redress. The Government considered that that had been the case. They relied, in particular, on the Supreme Administrative Court’s judgment of 15 October 1998 in the Pires Neno case, from which it was clear that the court had fully observed the principles and criteria laid down by the European Court of Human Rights in relation to the “reasonable time” requirement.

The Government also relied on the Giummarra v. France decision (no. 61166/00, 12 June 2001), in which the Court had held that an action under Article L. 781-1 of the French Code of Judicial Organisation was a remedy that had to be used by anyone intending to complain of the excessive length of proceedings. They considered that the position was similar in Portugal, the differences between the two legal provisions in issue not being sufficient to warrant different conclusions.

The applicant contested those arguments.

She argued, firstly, that Article 20 of the Constitution, like other constitutional provisions, was a “statement of principle” or a “statement of intent”.

In her submission, the provisions of Legislative Decree no. 48051 could not be regarded as an effective remedy in respect of the length of proceedings. That was demonstrated by the very limited number of cases in which applicants had been awarded compensation.

It was also common knowledge that there were excessive delays in the administration of justice in Portugal. If litigants were required to apply to the administrative courts before bringing their case to the Court, the violation of their right to have their case determined within a reasonable time would be aggravated in the sense that, by complaining of the excessive length of proceedings, they would run the risk of a further violation of that right. It was unacceptable that that state of affairs should persist indefinitely.

The case-law relied on by the Government had no bearing on the matter. The Portuguese courts were still discussing the preliminary issue of their jurisdiction to deal with actions of this kind. Their jurisdiction was, moreover, systematically challenged by the Attorney-General’s Department, acting on behalf of the State. The wording of Bills nos. 95/VIII and 148/IX showed that it was not possible under the current legislation to obtain compensation for the excessive length of proceedings. The decisions of the Supreme Administrative Court that appeared to offer proof of the contrary, in particular the Pires Neno judgment, were exceptional and isolated; the Government had cited only four, whereas Legislative Decree no. 48051 had been in force for 35 years.

The applicant concluded by submitting that the remedy in issue could not be regarded as sufficient or effective.

The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with applications after domestic remedies have been exhausted. The first issue to be determined is therefore whether the Government’s objection is well-founded. The Court would point out in that connection that all applicants must provide the domestic courts with the opportunity which is in principle intended to be afforded to Contracting States by that provision, namely the opportunity of preventing or putting right the violations alleged against them (see, for example, Cardot v. France , judgment of 19 March 1991, Series A no. 200, p. 19, § 36). That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).

The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. Their existence must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among many other authorities, Vernillo v. France , judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Dalia v. France , judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, pp. 87-88, § 38).

The Court notes that in previous cases before the European Commission of Human Rights the Portuguese Government have been unsuccessful in objecting that domestic remedies had not been exhausted on the ground that the claim for damages available under Legislative Decree no. 48051 was an effective remedy in respect of the length of proceedings. In the case of Gama da Costa v. Portugal (no. 12659/87, decision of 5 March 1990, Decisions and Reports 65, p. 136) the Commission dismissed such an objection on the following grounds:

“... the Government have not shown that Legislative Decree no. 48051 of 21 November 1967 governing the State’s non-contractual liability is applicable to cases involving the length of pending or concluded proceedings before the competent Portuguese courts. The Government have not cited a single precedent to show that such an action had real prospects of success, although the legal provision in question has been in force for more than twenty years.”

The Government again raised that objection in the instant case, relying, inter alia , on developments in the administrative courts’ case-law. They submitted that an increasing number of decisions had resulted in an award of compensation for the excessive length of proceedings.

Having regard to the documents produced by the Government, the Court observes that that is indeed the case. Admittedly, for a long time the Supreme Administrative Court’s only relevant precedent was the Garagens Pintosinho, Lda judgment of 7 March 1989. However, since 15 October 1998, the date of the Pires Neno judgment, the Supreme Administrative Court can be said to have accepted that the State can be held liable under Article 6 of the Convention for the length of judicial proceedings. The Pires Neno judgment and other subsequent rulings have expressly referred to the case-law of the European Court of Human Rights and relied on the criteria established by the Court for determining whether the length of judicial proceedings may be considered reasonable.

The applicant contended that those precedents did not have a sufficient degree of legal certainty. She noted in that connection that the Attorney-General’s Department had challenged the administrative courts’ jurisdiction to deal with actions of that kind, and submitted that the bills tabled in Parliament proved that the existing legislation was, to say the least, uncertain.

The Court finds those arguments unpersuasive. It notes, firstly, that in circular no. 11/2002 of 20 December 2002 the Attorney-General instructed all officials and members of his department not to challenge the administrative courts’ jurisdiction ratione materiae to deal with such cases. In any event, the issue appears to have been resolved as the administrative courts now accept jurisdiction to deal with actions to establish the State’s liability for the excessive length of proceedings.

As to the bills tabled in Parliament with the aim of replacing Legislative Decree no. 48051, the Court notes that the explanatory memorandum states that it was “thought helpful to incorporate into law various conclusions reached by the courts over the course of time”. This seems to be referring in particular to the relatively recent developments in the case-law concerning remedies in respect of the excessive length of proceedings. It cannot therefore be maintained on the basis of the bills’ content that Legislative Decree no. 48051, as currently interpreted by the administrative courts, has an insufficient degree of legal certainty. Nevertheless, the Court wishes to emphasise that the situation will improve and become clearer once the bills have been enacted by Parliament.

Having regard to the foregoing, the Court considers that, at least since October 1999, when the Pires Neno judgment was published and commented on in the legal journal Cadernos de Justiça Administrativa , an action to establish non-contractual liability on the part of the State has acquired a sufficient degree of legal certainty to enable and oblige an applicant to use it for the purposes of Article 35 § 1 of the Convention (see the Giummarra v. France decision cited above).

That conclusion is valid both for proceedings that have already ended and for those that are still pending. It is clear from the judgments produced by the Government that no distinction is made in either positive law or case-law between pending and concluded proceedings.

The fact that this purely compensatory remedy cannot be used to expedite proceedings which are under way is not decisive. The Court reiterates in that connection that it has held that remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000-XI). Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (ibid., § 159). In the Court’s view, having regard to the “close affinity” between Article 13 and Article 35 § 1 of the Convention (ibid., § 152), the same is necessarily true of the concept of “effective” remedy within the meaning of the second provision (see Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).

The Court would emphasise, however, that that conclusion applies only on condition that an action to establish non-contractual liability on the part of the State remains itself an effective, sufficient and accessible remedy in respect of the excessive length of judicial proceedings. Accordingly, it would be desirable for the administrative courts to devote special attention to such actions, particularly as regards the length of time taken to deal with them. Indeed, it cannot be ruled out that excessive delays in this regard will affect whether an action to establish liability is a sufficient remedy. Lastly, the Court would add that the sufficiency of the action may also depend on the level of compensation (see Scordino v. Italy (dec.), no. 36813/97, ECHR 2003-IV).

In the instant case, the Court notes that the applicant did not bring an action in the administrative courts to establish non-contractual liability on the part of the State. It observes that by the time the present application was lodged on 29 June 2000, such an action already qualified as a remedy that had to be used if domestic remedies were to be exhausted for the purposes of Article 35 § 1 of the Convention. The applicant has therefore failed to exhaust domestic remedies. That finding cannot be altered by the fact that, in principle, she is no longer entitled to do so, since such an action would appear to time-barred as the three-year period laid down in Article 498 of the Civil Code has expired. The Court reiterates in this connection that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged (see Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX).

The application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.