Resolution CM/ ResDH (2009)90 [1]

Execution of the judgment of the European Court of Human Rights

Cruz de Carvalho against Portugal

(Application No. 18223/04, judgment of 10 July 2007, final on 30 January 2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment, transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the unfairness of proceedings before civil courts (violation of Article 6 paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2009)90

Information about the measures to comply with the judgment in the case of

Cruz de Carvalho against Portugal

Introductory case summary

This case concerns a violation of the applicant ’ s right to a fair trial due to the failure to maintain equality of arms (violation of Article 6§1). In 2003, in the context of a special procedure for payment injunction of pecuniary obligations of a limited amount (Decree-law No. 269/98), the applicant who, according to the law, was not obliged to be represented by counsel, was then prevented from pleading his cause and questioning his witnesses because he was not represented by counsel, whereas the other party enjoyed all these rights.

The European Court found that, notwithstanding the applicable law and its interpretation by the Constitutional Court , the applicant had been placed at a significant disadvantage in relation to the other party; consequently the principle of equality of arms had been breached.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

500 euros

1 000 euros

1 500 euros

Paid on 14/05/2008

b) Individual measures

As a result of the proceedings challenged by the European Court , the applicant was sentenced to pay 138,98 euros to an insurance company.

In this case, any suggestion of reopening the domestic proceedings would seem to run up against the principle of legal certainty to which the other party to the civil proceedings is entitled. Furthermore, the circumstances of the case did not indicate that the applicant continues to suffer very serious negative consequences because of the violation of his right to a fair trial. In addition, before the European Court , the applicant only sought compensation for the non-pecuniary damages suffered. The European Court awarded him the full amount claimed (500 euros). This being the case, it is unnecessary to pursue the question of individual measures.

II. General measures

Prior to the facts at the origin of this case, by its decision No. 245/97 of 18/03/1997, the Constitutional Court had interpreted Articles 32 and 34 of the Code of Civil Procedure as allowing parties who decided, according to the legislation in force, not to be represented by a lawyer, to plead on both legal and factual issues. The violation of the Convention therefore arose from an erroneous application of the rules of procedure as interpreted by the Constitutional Court .

Given the direct effect of the European Convention in Portugal , publication and dissemination of the European Court ’ s judgment to all competent courts should be sufficient to avoid other, similar violations. In this context it should be noted that the European Court ’ s judgment has been translated and transmitted to the Prosecutor General and the Superior Judicial Council for dissemination to all courts. It is also available on the Internet site of the Cabinet of Documentation and Comparative Law ( www.gddc.pt ), which comes under the Prosecutor General of the Republic.

III. Conclusions of the respondent state

The government considers that the measures taken will prevent new, similar violations and that Portugal has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 30 September 2009 at the 1065 th meeting of the Ministers’ Deputies