THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57862/00 by David DAVENPORT against Portugal

The European Court of Human Rights (Third Section), sitting on 29 January 2004 as a Chamber composed of :

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr J. Hedigan , Mrs H.S. Greve , Mr K. Traja , Mrs A. Gyulumyan , judges ,

and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 20 January 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr David Davenport, is a United Kingdom national who was born in 1939. He was represented before the Court by Ms C. Harby, a lawyer from the AIRE centre in London. On 9 April 2002, the Court was informed of the applicant’s death. His son, Mr Mark Davenport, expressed the wish to pursue the application. He is represented by Ms C. Harby.

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

On 25 October 1990, the applicant bought a plot of land situated in Silves (Portugal). The purchase was registered in the Land Registry ( Conservatória do Registo Predial ) of Silves. The previous owner of the land had applied to the Silves City Council ( Câmara Municipal ) seeking permission for the land (including the plot of the applicant as well as other plots) to be developed for urban construction. The City Council granted a construction permit ( alvará ) on 25 February 1983.

On 21 June 1993, the Public Attorney instituted proceedings against the Silves City Council in the Administrative Tribunal ( Tribunal Administrativo de círculo ) of Lisbon. He submitted that the decision passed by the City Council granting the permit was void, as some administrative procedures had not been followed. The Public Attorney asserted that when the permit was granted, the City Council had not drawn up a formal plan for the urbanisation of the area. In those circumstances, the previous approval of the Directorate-General of Urban Services ( Direcção-Geral dos Serviços de Urbanismo ) was necessary pursuing to the Decree-Law no. 289/73 of 6 June 1973. As such approval had not taken place, the permit was null and void. Finally, the Public Attorney asked the Tribunal to serve summonses on the individuals having bought land on the area in question as private defendants.

The applicant filed his defence on 16 March 1994. He submitted that he had purchased the property in good faith and that he was unaware of any alleged failures in the issue of the permit. In his view, even if the Administrative Tribunal annulled the permit, that could not affect his rights.

On 7 November 1994, the judge suspended the proceedings in view of the death of one of the private defendants.

By a decision of 29 September 1998, the judge considered that the proceedings could be resumed.

On 27 March 2001, the Administrative Tribunal gave its judgment in favour of the Public Attorney and declared the construction permit granted by the Silves City Council to be null and void. The applicant was notified of this decision on 22 November 2001.

On 6 December 2001, the applicant filed an appeal against this judgment with the Supreme Administrative Court.

On 12 February 2003, the Supreme Administrative Court rejected the appeal.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the length of proceedings.

He further complains under Article 1 of Protocol N o 1 of a violation of his right to the peaceful enjoyment of his possessions. The applicant submits that he is unable to exploit the land because of the excessive length of the domestic proceedings.

The applicant finally complains of a violation of Article 13 of the Convention combined with Article 1 of Protocol N o 1. He submits that the respondent State has in place no mechanism by which he would be able to challenge the excessive length of proceedings and to demonstrate the losses he has thereby incurred.

THE LAW

1. The Court notes firstly the fact of the applicant’s death, and the wish of his son to pursue the proceedings he initiated.

The Court reiterates that, where an applicant dies during the examination of a case, his heirs of next kin may in principle pursue the application on his behalf ( Jecius v. Lithuania ) no. 34578/97, § 41, ECHR 2000-IX). The Court considers that the applicant’s son has a legitimate interest in pursuing the application in his stead.

2. The applicant complains about the length of proceedings. He further submits that this same length is in violation of his right to the peaceful enjoyment of his possessions since he is unable to exploit the land. Finally, the applicant submits that the respondent State has in place no mechanism by which he would be able to challenge the excessive length of proceedings and to demonstrate the losses he has thereby incurred. The applicant invokes Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol N o 1, which provide, inter alia :

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 notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 1 of Protocol N o 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government objected at the outset that the applicant had the possibility to bring an action against the State. For the Government, 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 Court will examine the applicant’s complaints about the excessive length of proceedings under Articles 6 § 1 and 13 of the Convention. His submissions concerning the violation of the right to the peaceful enjoyment of his possessions because of the excessive length of proceedings do not raise a separate issue under Article 1 of Protocol N o 1 (see, among other authorities, Thery v. France , no. 33989/96, § 29, 1 February 2000; Brigandi v. Italy , judgment of 19 February 1991, Series A no. 194-B, p. 32, § 32).

The Court notes however that under Article 35 § 1 of the Convention, it may only deal with applications after domestic remedies have been exhausted.

The Court recalls in this connection that it has already examined whether an action to establish non-contractual liability on the part of the State is an effective remedy, within the meaning of Article 35 § 1, in respect of the excessive length of proceedings in the Paulino Tomás case ( Paulino Tomás v. Portugal (dec.), no. 58698/00, ECHR 2003-VIII).

The Court considered in the above mentioned case that, at least since October 1999, when the Pires Neno judgment of the Supreme Administrative Court 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 had acquired a sufficient degree of legal certainty to enable and oblige an applicant to use it for the purposes of Article 35 § 1.

The Court reiterated in this connection 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” ( 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 ( Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).

The Court sees no reason to depart from this case-law in the instant case. It 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 20 January 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.

As far as the applicant also invoked Article 13 of the Convention, the Court recalls what was said above: an action to establish non-contractual civil liability is clearly a “remedy” within the meaning of this provision. This part of the application is therefore manifestly ill founded.

It follows that the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Mark Villiger Georg Ress Deputy Registrar President