DISSENTING OPINION OF JUDGE MORENILLA

(Translation)

1.   To my regret I must record my disagreement with the finding of a violation of Article 6 para . 1 (art. 6-1) of the Convention in this case and the reasoning on which that finding was based.

2.   The majority reached the conclusion that there had been a violation of Mr Silva Pontes ’ s right to have his case heard within a reasonable time by applying to the present case the Court ’ s case-law as laid down in the Guincho v. Portugal judgment of 10 July 1984 (Series A no. 81, p. 13, para . 29) and more specifically in the Martins Moreira v. Portugal judgment of 26 October 1988 (Series A no. 143, p. 16, para . 44). The similarity of the facts and the legal issues in this case to those in the Martins Moreira case - noted by the majority (paragraph 40 of the judgment) -, as a result of the fact that the two cases concerned the same compensation proceedings in which the applicants, as victims of the same road accident, were co-plaintiffs, led the majority to make an identical finding of a violation of Article 6 para . 1 (art. 6-1) of the Convention, on the basis of the delays attributable to the Portuguese judicial authorities in the proceedings brought by the applicant.

3.   In my opinion, however, the present case, notwithstanding the above-mentioned circumstances, is clearly distinguishable from the earlier cases. Unlike Mr Martins Moreira and Mr Guincho , who had applied to the Commission during the declaratory proceedings, Mr Silva Pontes complained to the Commission two years after the decision of the Portuguese Supreme Court which concluded the declaratory proceedings and exhausted the domestic remedies. By virtue of Articles 26 and 27 (art. 26, art. 27) of the Convention, the applicant ’ s complaint that his case had not been heard within a reasonable time could therefore only refer to the enforcement proceedings which were then pending and which had been instituted eight months after the above-mentioned decision of the Supreme Court.

4.   However, the majority appears to disregard this fact, which goes to the essence of the Convention system. Ultimately, like the Court in the Martins Moreira judgment moreover, they take sides - apparently despite themselves (see paragraph 29) - in a century-old academic dispute as to whether declaratory proceedings and enforcement proceedings relating to a civil action for damages are parts of one and the same set of proceedings. The diversity of the legal systems in Europe - and even the practice of the European Court when applying Article 50 (art. 50) of the Convention - reveals the heterogeneity of the approaches taken and shows that it is unrealistic to refer to the Convention as if it were a monolithic system of precedent-based law. I consider that this variety in the procedural solutions adopted, which are, in my opinion, compatible with the Convention inasmuch as they seek to achieve a more effective and less protracted system of justice, precludes adopting inflexible positions, which may in addition lead to dangerous simplifications in view of the great number of different situations which may arise in the context of enforcement proceedings.

5.   Furthermore, when Mr Silva Pontes instituted the enforcement proceedings, he limited the scope of his action to the part of the damages that had already been calculated in the final judgment. He did so expressly (paragraph 16 of the judgment) as is shown by the rider, likewise formulated in express terms, reserving the right to claim the remainder "once the details necessary for its calculation have been established" in accordance with Article 810 of the Portuguese Code of Civil Procedure. I cannot therefore share the contrary view put forward by the majority (paragraph 33 of the judgment). Accordingly the question of the nature of the proceedings concerning the determination - to be effected at the enforcement stage - of the damages that had not been calculated, did not arise (paragraph 31 of the judgment). In the present case the applicant ’ s complaint before the Commission, based on the excessive duration of the proceedings, could only, as has been stated, refer to the enforcement proceedings then pending and could not relate to the declaratory proceedings, which had reached a final conclusion and in respect of which Mr Silva Pontes had not previously - throughout the long proceedings and for two years after the judgment - filed any complaint concerning their length. It is my view that the Convention institutions ’ jurisdiction to examine the length of declaratory proceedings, for the purposes of Article 6 para . 1 (art. 6-1), cannot extend beyond the time-limit laid down in Article 26 (art. 26) of the Convention solely because the applicant decides to seek the enforcement of a final judgment where one of the debts arising thereunder , having not been calculated, has been left for the enforcement proceedings.

The majority ’ s approach, which in fact "resuscitates" the question of delays in the declaratory proceedings, is, I believe, contrary to legal certainty and to the generally recognised principles of international law (Article 26 (art. 26) of the Convention). As the Commission stated (decision of 9 June 1958 in the De Becker case, application no. 214/56, see G. Cohen-Jonathan, La Convention européenne des Droits de l ’ Homme , Paris 1989, p. 132), referring to the travaux préparatoires , "the two rules contained in Article 26 (art. 26) concerning the exhaustion of domestic remedies and concerning the six-month period are closely interrelated".

6.   As regards the length of the enforcement proceedings in issue (from 28 October 1987, when the applicant instituted them, until 19 December 1989, the date of the settlement concluded between the applicant and Mr dos Reis), the facts of the case show (see paragraphs 16-19) that the delays which occurred were not attributable to the Portuguese judicial authorities, who displayed due diligence in conducting the enforcement proceedings, which were of some complexity as a result of the incidents which arose during them. The applicant himself contributed to the delay by taking almost eleven months, from 29 January 1988 until 23 December 1988, to list the attachable goods of Mr dos Reis, once the Lisbon court has established that it was impossible to attach the assets of the Gestetner company. In addition, the enforcement proceedings were stayed on 5 April 1989 following the request for the separation of the assets of Mrs dos Reis until the settlement was concluded. In the light of the criteria laid down by the Court in this field, there has therefore been no violation of the Convention in this case.

[*]  Note by the Registrar: The case is numbered 6/1993/401/479.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 286-A of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.