Resolution CM/ResDH(2010)133[1]
Execution of the judgment of the European Court of Human Rights
Ferreira Alves No. 5 against Portugal
(Application No. 30381/06, judgment of 14 April 2009, final on 14 July 2009)
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 a breach of the applicant’s right to a fair trial due to the failure to communicate to him the memoranda prepared by the first-instance judge for the appellate court (violation of Article 6, paragraph 1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention 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, within the time-limit set, the respondent state paid the applicant 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 in the 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
- general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised 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(2010)133
Information on the measures taken to comply with the judgment in the case of
Ferreira Alves No. 5 against Portugal
Introductory case summary
This case concerns the violation of the applicant’s right to a fair trial due to the fact that the memoranda prepared by the first-instance judge in March 2006 for the appellate court during civil proceedings was not disclosed to him (violation of Article 6§1). The European Court found that the right to a fair trial had been breached since the document should have been communicated to the applicant, on the ground of his right to be informed and comment on all documents submitted in the proceedings.
I.Payments of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
-
2 000 EUR
2 000 EUR
Paid on 24/09/2009
b) Individual measures
The Court held that the finding of a violation constituted in itself sufficient just satisfaction in respect of the non-pecuniary damages sustained by the applicant.
It should be noted furthermore that the proceedings at issue in the judgment of the Court were initiated by the applicant in the context of a dispute with his former employer (a co-operative). In these proceedings the applicant asked to receive from the defendant co-operative communication of certain documents and information. In the meantime, in other proceedings not questioned by the Court, domestic courts confirmed the legality of the applicant’s dismissal by the cooperative. Finally, the courts closed the first proceedings on the ground that they ceased to have any purpose since the applicant was no longer employed by the defendant co-operative.
In these circumstances, it does not seem that the applicant suffers very serious consequences of the violation found by the Court. Moreover, any suggestion of reopening the proceedings at issue would seem to run up against the principle of legal certainty to which the other party to the civil proceedings is entitled. Consequently, no individual measure was considered necessary.
II.General measures
This case presents similarities with those of Antunes and Pires and Ferreira Alves No. 3 against Portugal, closed by Resolution CM/ResDH(2010)61, adopted by the Committee of Ministers on 3 June 2010.
In particular, the violation of Article 6, paragraph 1, in all these cases arose from the combined application of the Code of Civil Procedure, in particular Article 744, and the case-law (Appeal Court of Evora, judgment of 29/03/1979) according to which there was no obligation to notify memoranda prepared by the first-instance court for the appellate court to the parties. As part of the reform of the Code of Civil Procedure brought in by Law-decree No. 303/07 of 24/08/2007, which entered into force on 01/01/2008, Article 744 of this Code was repealed.
In addition, the Portuguese authorities underlined that given the direct effect of the Convention in Portugal, publication and dissemination of the Court’s judgment Ferreira Alves No. 3 to all competent courts should be sufficient to avoid similar violations (for details on publication and dissemination of this judgment see Final Resolution CM/ResDH(2010)61.
III.Conclusions of the respondent state
The government considers that no other individual measure is required in this case, that the general measures taken will prevent 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 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies
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