Resolution CM/ ResDH (2009)52 [1]

Execution of the judgment of the European Court of Human Rights

Gregorio de Andrade against Portugal

(Application No. 41537/02, judgment of 14 November 2006, final on 26 March 2007)

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 in this case, transmitted by the Court once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the infringement of the applicant ’ s right of access to a court due to late notification of a judgment (Violation of Article 6§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 judgments;

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)52

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

Gregorio de Andrade against Portugal

Introductory case summary

The case concerns the fact that the applicant could not lodge an appeal with the Supreme Administrative Court to harmonise case-law against a judgment, given by that court, concerning the accumulation of his pension rights, since this judgment was notified to him by the public prosecutor after the expiry of the statutory time-limit for entering such appeal (violation of Article 6§1). The public prosecutor had initially brought the proceedings concerning the pension rights on behalf of the applicant.

Following a number of requests by several applicants on the legal question at issue in the present judgment, the Supreme Administrative Court delivered contradictory judgments.

The European Court considered that the public prosecutor should have informed the applicant of his decision not to submit a request for harmonising the contradictory case-law in order to allow him to continue the proceedings by addressing a counsel. The Court noted that, by omitting to do so in good time, the public prosecutor prevented the applicant, who had serious reasons for wishing to bring the matter before the Supreme Administrative Court , to lodge the appeal.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1 000 euros

3 534 euros

4 534 euros

Paid on 10/08/2007

b) Individual measures

The applicant died in 2004. Subsequently to the facts of the present case, the subject-matter of the applicant ’ s proceedings before the national courts has been clarified. On an appeal for harmonisation of jurisprudence, the Plenary Chamber of the Supreme Administrative Court gave, in 2005, an authoritative decision on the question of the accumulation of pension rights, thereby settling the matter of the dispute. In these circumstances, no further individual measure is necessary.

II. General measures

The Prosecutor General issued an order to public prosecutors containing instructions on notification of all court decisions. Under Article 12§2(b) of Act No. 60/98 the Prosecutor General is competent to issue directives, orders and instructions which are compulsory for public prosecutors and breach of which carries disciplinary sanctions. The order in question made it clear that, when public prosecutors intervene in proceedings, on behalf of an applicant or in the exercise of their duties, they must inform the applicants in good time of any decision concerning them of which the prosecutors were notified. Where they decide not to pursue the proceedings in a given case, they must draw the applicants ’ attention to the court decision delivered, to allow them, if appropriate, to pursue the case within the statutory time-limits.

The European Court ’ s judgment has been translated and published on the Internet site of the Cabinet of Documentation and Comparative Law ( http://w w w.gddc.pt ), which comes under the Prosecutor General of the Republic.

III. Conclusions of the respondent state

The government considers that the consequences for the applicant of the violation found in this case have been remedied, that no further individual measure proved necessary, that the general 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 2 April 2009 at the 1051st meeting of the Ministers’ Deputies