CASE OF ALBERTINA CARVALHO E FILHOS LDA v. PORTUGAL

FOURTH SECTION

CASE OF ALBERTINA CARVALHO E FILHOS LDA v. PORTUGAL

(Application no. 23603/14)

JUDGMENT

STRASBOURG

4 July 2017

This judgment is final but it may be subject to editorial revision.

In the case of Albertina Carvalho e Filhos Lda v. Portugal,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Egidijus Kūris, President,
Paulo Pinto de Albuquerque,
Iulia Motoc, judges,

and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 13 June 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 23603/14) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a company established under Portuguese law, Albertina Carvalho e Filhos, Lda (“the applicant company”), on 14 March 2014.

2. The applicant company was represented by Mr J.J. Ferreira Alves, a lawyer practising in Matosinhos. The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General.

3. On 18 November 2015 the applicant company’s complaints about the length of a set of civil proceedings and the absence of an effective domestic remedy in this connection were communicated to the Government and the reminder of the application was declared inadmissible by the Vice-President of the Section, acting as a single judge, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant company has its registered office in Valongo, Portugal.

5. On 18 July 2005 the applicant company brought enforcement proceedings against M.C. before the Valongo Court, seeking payment of an alleged debt of 32,992.99 euros (EUR) plus EUR 18,413.35 in interest it considered to be due up to that date, amounting to a total sum of EUR 51,406. It also sought the payment of the interest accrued until the date of repayment of the debt in full.

6. On 12 October 2005 a judicial enforcement officer (agente de execução) was appointed to the case by the Valongo Court. He accepted this appointment on 13 October 2005.

7. M.C. was summoned on 20 November 2005 and on 14 December 2005 she lodged an application for proceedings for opposition to enforcement (oposição à execução). These proceedings were joined to the enforcement proceedings on 15 December 2005.

8. Between 15 December 2005 and 3 March 2016 information was exchanged between the Valongo Court and the judicial enforcement officer about the date on which M.C. had been summoned and the documents in that connection.

9. On 30 May 2006 the applicant company gave its reply to the opposition to enforcement proceedings.

10. Between 6 February 2007 and 15 August 2008 several procedural steps took place in the enforcement proceedings regarding the possible freezing of M.C.’s bank accounts.

11. In the meantime, on 22 February 2008, in the proceedings for opposition to enforcement the court had given a preparatory decision setting out the facts that had already been established and those that remained outstanding (despacho saneador).

12. On 29 November 2010 the applicant company’s lawyer withdrew from the case.

13. On 6 December 2010 the court requested that the judicial enforcement officer provide a report on the procedural steps taken (see paragraph 10 above).

14. On 14 January 2011 the court could not contact the applicant company at the address it had provided to the court.

15. On 16 December 2011 a hearing in the proceedings for opposition to enforcement was scheduled for 30 May 2012. For reasons related to the health of M.C.’s lawyer, the hearing was postponed to 27 November 2012. On an unknown date the hearing was postponed to 6 March 2013, the date on which it took place.

16. For unknown reasons, on 23 December 2011 the Chamber of Judicial Officers (Câmara dos Solicitadores) informed the Valongo Court that a new judicial enforcement officer was to be appointed.

17. On 3 January 2012 a new judicial enforcement officer was appointed to the enforcement proceedings.

18. On an unknown date before the 16 January 2012 another lawyer started representing the applicant company.

19. Between 25 September and 11 December 2012 discussions took place between the new judicial enforcement officer, the court and the previous judicial enforcement officer regarding the transmission of the necessary case documents from the previous judicial enforcement officer to the new one.

20. Between 9 April and 1 October 2013 correspondence took place between the new judicial enforcement officer and the court regarding the applicant company’s representation by a lawyer (whether it was represented in the case and by whom).

21. On 29 April 2013 the Valongo Court adopted a decision against the applicant company in the proceedings for opposition to enforcement.

22. On an unknown date before or during February 2014 the applicant company appealed against that decision to the Oporto Court of Appeal.

23. The Oporto Court of Appeal upheld the first-instance decision by a judgment adopted on 20 May 2014.

24. On an unknown date the applicant company appealed against that judgment to the Supreme Court of Justice. On 11 September 2014 that appeal was rejected by the Oporto Court of Appeal because the applicant company had not submitted any grounds of appeal. Following that decision, the enforcement proceedings were terminated.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

25. The applicant company complained that the length of the proceedings had been incompatible with the “reasonable time” requirement. It also complained that it had not had an effective remedy in this respect. It relied on Articles 6 § 1 and 13 of the Convention, which read as follows in the relevant parts:

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 ...”

26. The period to be taken into consideration began on 18 July 2005, when the applicant company instituted enforcement proceedings (see paragraph 5 above) and ended in September 2014, after the appeal before the Supreme Court of Justice in the proceedings for opposition to enforcement was discontinued (see paragraph 24 above). It thus lasted more than nine years at two levels of jurisdiction.

A. Admissibility

1. Abuse of the right of application

27. The Government asked the Court to declare the application inadmissible as an abuse of the right of petition, within the meaning of Article 35 § 3 of the Convention. They alleged that the applicant company had omitted to indicate in the application form the existence of the proceedings for opposition to enforcement and the appeal that it had lodged with the Court of Appeal in those proceedings. They further submitted that the applicant company had failed to inform the Court of the fact that the enforcement proceedings had been discontinued in September 2014.

28. The Court reiterates that in general terms any conduct on the part of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and that impedes the proper functioning of the Court, or the proper conduct of the proceedings before it, constitutes an abuse of the right of application (see Miroļubovs and Others v. Latvia, no. 798/05, §§ 62 and 65, 15 September 2009).

29. An application may be rejected as an abuse of the right of individual application under Article 35 § 3 of the Convention if it was knowingly based on untrue submissions (see, among other authorities, Jian v. Romania, (dec.), no. 46640/99, 30 March 2004, and Kerechashvili v. Georgia (dec.), no. 5667/02, ECHR 2006-V) or if incomplete and therefore misleading information was submitted to the Court (see, among other authorities, Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006, and Basileo v. Italy (dec.), no. 11303/02, 23 August 2011). Similarly, an application may be rejected as an abuse of the right of application if applicants – despite their obligation under Article 47 § 7 (former Article 47 § 6) of the Rules of Court – fail to inform the Court of important new developments regarding their pending applications, given that such conduct prevents the Court from ruling on the matter in full knowledge of the facts (see Miroļubovs and Others v. Latvia, cited above, § 63; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 97, ECHR 2012; and Ferreira Alves v. Portugal (dec.), no. 60419/09, § 15, 28 January 2014).

30. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Melnik v. Ukraine, no. 72286/01, §§ 58-60, 28 March 2006; Nold v. Germany, no. 27250/02, § 87, 29 June 2006; and Centro Europa 7 S.r.l. and Di Stefano, cited above, § 97).

31. Turning to the present case, the Court notes that when the application was lodged with the Court the proceedings had already lasted almost nine years. Although the applicant company failed to provide all the details on the proceedings, the omissions did not impede the proper functioning of the Court. Moreover, the applicant company did mention once in the application form the existence of the proceedings for opposition to enforcement – even if it didn’t provide any details in that connection.

32. Therefore, while it is regrettable that the applicant company failed to provide some information (see paragraph 27 above), it cannot be established with certainty that it intended to mislead the Court (contrast Ferreira Alves, cited above, § 15).

33. The Court does not therefore consider that the applicant company abused its right of individual petition in the present case. Accordingly the Government’s objection must be dismissed.

2. Conclusion

34. The Court further notes that the application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Alleged violation of Article 6 § 1 of the Convention

35. The Government acknowledged that the proceedings had been subject to a delay and that their length had exceeded what could legitimately be expected. Nevertheless, they were of the opinion that the length of the proceedings in the present case had been in part caused by the applicant company’s behaviour and could not be attributable solely to the domestic courts. According to the Government, between 29 November 2010 and November 2011 the proceedings were delayed because the Valongo Court could not contact the applicant company at the address it had provided to the court. The Government also emphasised that some delays in the proceedings, specifically the hearing’s postponement from 30 May 2012 to 27 November 2012 and later to 6 March 2013, had been due to the state of health of M.C.’s lawyer. Lastly, the Government emphasised that it should be considered that the enforcement proceedings lacked sufficient legal and/or factual basis as the national courts had decided against the applicant company.

36. The Court firstly notes that Article 6 § 1 requires that cases be heard “within a reasonable time”; in so providing, the Convention underlines the importance of rendering justice without delays which might jeopardise its effectiveness and credibility (see H. v. France, no. 10073/82, § 58, 24 October 1989). This is applicable independently of whether final decisions are in favour of the applicant(s) or not.

37. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV).

38. The Court notes that the proceedings in the instant case lasted more than nine years for two levels of jurisdiction and were not of particular complexity.

39. Regarding the applicant company’s conduct, it appears from the case-file that on 14 January 2011 the Valongo Court could not contact the applicant company at the address it had provided to that court (see paragraph 14 above). The Court therefore admits that this might have caused some delays in the proceedings. However, there is nothing therein to allow the Court to conclude that this caused a one-year delay, as the Government suggested; nor can the exact delay that might have been caused be determined.

40. It is also to be noted that the applicant company caused a delay in the proceedings by lodging an appeal against the Court of Appeal judgment with the Supreme Court of Justice, which it did not supplement with valid grounds for appeal (see paragraph 24 above).

41. As regards the conduct of the national authorities, the Court considers that the Government did not provide any explanation for some periods of inactivity on the part of the Valongo Court, such as:

- between 30 May 2006, when the applicant company gave its reply to the opposition to enforcement (see paragraph 9 above), and 6 February 2007, when procedural steps regarding the possible freezing of M.C.’s bank accounts were initiated in the enforcement proceedings (see paragraph 10 above);

- between 15 August 2008, when the procedural steps in the enforcement proceedings regarding the possible freezing of M.C.’s bank accounts ended (see paragraph 10 above), and 6 December 2010, when the domestic court asked the judicial enforcement officer to provide a report on the procedural steps taken (see paragraph 13 above);

- between 16 December 2011, when the hearing in the proceedings for opposition to enforcement was scheduled (see paragraph 15 above), and 25 September 2012, when the new judicial enforcement officer, the court and the previous judicial enforcement officer exchanged information regarding the transmission of the necessary case documents from the previous judicial enforcement officer to the new one (see paragraph 19 above);

- between 11 December 2012, when the new judicial enforcement officer, the court and the previous judicial enforcement officer ceased to exchange information (see paragraph 19 above), and 9 April 2013, when information was shared by the new judicial enforcement officer with the court regarding the applicant company’s representation by a lawyer (see paragraph 20 above).

42. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, for instance, Comingersoll S.A., cited above).

43. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

44. There has accordingly been a breach of Article 6 § 1.

2. Alleged violation of Article 13 of the Convention

45. The applicant company further complained of the fact that in Portugal there was no court to which an application could be made to complain about the excessive length of proceedings.

46. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 for a case to be heard within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).

47. The Court observes that prior to 27 May 2014, Portuguese practice did not provide for an effective legal remedy allowing a claimant to obtain compensation for excessive length of proceedings (see Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, §§ 51-57, 10 June 2008, and Valada Matos das Neves v. Portugal, no. 73798/13, § 106, 29 October 2015).

48. Having regard to its case-law on the subject (see Nouhaud and Others v. France, no. 33424/96, §§ 44 and 45, 9 July 2002, and Valada Matos das Neves, cited above, §§ 106 and 107, with further references), the Court considers that at the time the instant application was lodged (14 March 2014) and at least until 27 May 2014, the applicant company had no effective remedy against the excessive length of the proceedings.

49. Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant company could have obtained a ruling upholding its right to have its case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

50. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

51. The applicant company claimed 17,000 euros (EUR) in respect of non-pecuniary damage.

52. The Government contested the claim.

53. The Court considers that the applicant company must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards it EUR 3,600 under that head.

B. Costs and expenses

54. The applicant company also claimed EUR 2,100 for the costs and expenses incurred before the Court.

55. The Government left the matter to the Court’s discretion.

56. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,000 for the proceedings before it.

C. Default interest

57. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant company, within three months, the following amounts:

(i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant company’s claim for just satisfaction.

Done in English, and notified in writing on 4 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiEgidijus Kūris
Deputy RegistrarPresident

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