Information Note on the Court’s case-law 14

January 2000

Almeida Garrett, Mascarenhas Falcão and Others v. Portugal - 29813/96 and 30229/96

Judgment 11.1.2000 [Section I]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Length delay in fixing and payment of final compensation for expropriation: violation

(Extract from press release)

Facts : The applicants, Alexand re de Almeida Garrett, José Mascarenhas Falcão, Francisco Augusto Mascarenhas Falcão, Maria Teresa Mascarenhas de Oliveira Falcão de Azevedo, Maria José Mascarenhas Falcão Themudo de Castro and Leone Marie Irion Falcão are all Portuguese nationals. They we re born in in 1926, 1932, 1939, 1919, 1935 and 1930 respectively. The first four applicants live in Lisbon and the last two in Constância (Portugal). The applicants were all owners of land which was expropriated and made national property as part of the ag rarian reform implemented in Portugal after the 1974 revolution. In accordance with the legislation applicable to agrarian reform, they received interim compensation in the form of Government bonds. To date, they have not yet received their final compensat ion. The applicants applied to the ordinary and administrative courts seeking damages for the delay in determining and paying out the final compensation, but the courts concerned ruled that they did not have jurisdiction. The applicants complained that, ha ving still not received any final compensation, they had suffered an infringement of their right to the peaceful enjoyment of their possessions, secured by Article 1 of Protocol No. 1 to the European Convention on Human Rights. In that connection, they als o relied on Articles 6, 13 and 17 of the Convention.

Law : The Government’s preliminary objection - The Court, after first pointing out that it could not examine issues arising from the deprivation of ownership in itself, since these fell outside its jurisd iction ratione temporis , noted that the applicants complained of the fact that they had received no final compensation, a state of affairs which still obtained. It further observed that the Government had continued to legislate on the matter after the date on which Portugal ratified the Convention. Yet the State was responsible for acts and omissions in respect of a right guaranteed by the Convention which had taken place since the Convention was ratified. Since the applicants were accordingly placed in a c ontinuing situation, the Court dismissed the Government’s preliminary objection.

Article 1 of Protocol No. 1 to the Convention - The Court observed that this provision protected financial assets such as debts. It noted that the relevant Portuguese legislat ion - and a court decision as regards Mr Almeida Garrett in particular - had upheld the applicants’ right to compensation on account of the deprivation of their possessions. The applicants could accordingly assert the right to receive payment of the State’ s debts towards them, so that Article 1 of Protocol No. 1 was applicable. The Court went on to point out that it was the fact that no final compensation had been paid to date which constituted interference with the applicants’ right to peaceful enjoyment o f their possessions. It emphasised that it could not examine the deprivation of ownership itself, still less the amount of compensation. Consequently, the rule laid down by Article 1 of Protocol No. 1 which was applicable in the instant case was the one se t forth in the first sentence of the first paragraph, which enunciated in general terms the principle of peaceful enjoyment. For the purposes of that principle, the Court had to ascertain whether a fair balance had been maintained between the requirements of the general interest of the community and protection of an individual’s fundamental rights. It accepted that the interference in issue had pursued a legitimate aim since it could not be deemed unreasonable for a State to take into account its own econom ic and budgetary resources following a far-reaching land reform whose economic and social policy objectives could not be contested. However, the Court noted that twenty-four years had already elapsed without the applicants receiving final compensation, eve n though such compensation had been provided for in the relevant domestic legislation. It pointed out that the adequacy of compensation would be diminished if payment failed to take account of factors that might reduce its value, such as the lapse of a per iod of time which could not be described as reasonable. It was undeniable that the length of the period of time in question was attributable to the State; the complexity of the administrative authorities’ task in this regard or the number of persons to be compensated could not justify a period as lengthy as the one complained of. Moreover, the fact that the applicants had received interim compensation did not appear decisive. The compensation in question had been paid several years after the deprivations of property in issue. In any event, the fact that interim compensation had been paid did not alter the situation of uncertainty which still affected the applicants. It was that uncertainty, coupled with the lack of any effective domestic remedy capable of pr oviding redress for the situation complained of, which led the Court to consider that the applicants had already had to bear a special, excessive burden which had upset the fair balance required between the requirements of the general interest on the one h and and protection of the right to peaceful enjoyment of possessions on the other. The Court accordingly concluded that there had been a violation of Article 1 of Protocol No. 1.

Conclusion : violation (unanimous).

Articles 6, 13 and 17 of the Convention - The Court considered that it was not necessary to examine the application separately from the standpoint of those provisions.

Article 41 of the Convention - The Court considered that the question of just satisfaction was not ready for decision as regard s pecuniary and non-pecuniary damage and decided to reserve it while taking into account the possibility of an agreement between the respondent State and the applicants. On the other hand, it awarded 3,500,000 Portuguese escudos to Mr Almeida Garrett and 2 ,000,000 escudos to the Mascarenhas Falcão family for costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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