CASE OF NEVES E SILVA v. PORTUGAL



In the Neves e Silva case*,

_______________

(*)  Note by the registry: The case is numbered 5/1988/149/203.

     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.

_______________

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

        Mr R. Ryssdal, President,

        Mr J. Pinheiro Farinha,

        Mr L.-E. Pettiti,

        Mr B. Walsh,

        Sir Vincent Evans,

        Mr A. Spielmann,

        Mr N. Valticos,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 24 January and 29 March 1989,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1.      The case was referred to the Court by the European Commission

of Human Rights ("the Commission") and by the Government of the

Republic of Portugal ("the Government") on 14 March and 11 April 1988

respectively, within the three-month period laid down by

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention.

It originated in an application (no. 11213/84) against Portugal lodged

with the Commission under Article 25 (art. 25) by Mr José Neves e Silva,

a Portuguese national, on 17 October 1984.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) of the Convention and to the declaration whereby Portugal

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46); the Government's application referred to Article 48

(art. 48).  The object of the request was to obtain a decision from

the Court as to whether there had been a breach by the respondent

State of its obligations under Article 6 para. 1 (art. 6-1); the

application sought a finding that there had been no such breach.

2.      In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he

wished to take part in the proceedings pending before the Court and

designated the lawyer who would represent him (Rule 30).

3.      The Chamber to be constituted included ex officio

Mr J. Pinheiro Farinha, the elected judge of Portuguese nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)).  On 25 March 1988, in the

presence of the Registrar, the President drew by lot the names of the

other five members, namely Mr L.-E. Pettiti, Mr B. Walsh,

Sir Vincent Evans, Mr A. Spielmann and Mr N. Valticos (Article 43 in

fine of the Convention and Rule 21 para. 4) (art. 43).

4.      Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent of the

Government, the Delegate of the Commission and the applicant's lawyer

on the need for a written procedure (Rule 37 para. 1).  In accordance with

the orders made in consequence, the Registrar received the

Government's memorial on 16 August 1988.  By a letter of

26 September 1988, Mr Neves e Silva's lawyer indicated that he no

longer intended to submit a memorial.  On 18 October 1988 the

Secretary to the Commission informed the Registrar that the Delegate

would submit his observations at the hearing.

5.      Having consulted, through the Registrar, those who would be

appearing before the Court, the President directed on 8 October 1988

that the oral proceedings should open on 23 January 1989 (Rule 38).

6.      On the President's instructions, the Registrar requested the

Government to produce various documents; they did so on 31 May

and 1 December 1988.  The applicant's claims under Article 50

(art. 50) of the Convention reached the registry on 12 December 1988.

7.      The hearing took place in public in the Human Rights Building,

Strasbourg, on the appointed day.  The Court had held a preparatory

meeting immediately beforehand.

There appeared before the Court:

(a)  for the Government

    Mr I. Cabral Barreto,

          Deputy Procurador-Geral,                       Agent,

    Mrs M. Santos Pais, of the Procurador-Geral's

                        Office,                         Counsel;

(b)  for the Commission

     Mr A. Weitzel,                                     Delegate;

(c)  for the applicant

    Mr J.V. Jardim, advogado,

    Mr J.P. de Lima, advogado,                         Counsel.

The Court heard addresses by Mr Cabral Barreto for the Government, by

Mr Weitzel for the Commission and by Mr Jardim for the applicant, as

well as their replies to its questions.   The representatives of the

Government and of the applicant produced various documents on the

occasion of the hearing.

AS TO THE FACTS

I.      Particular circumstances of the case

8.      Mr José Neves e Silva, a retired accountant of Portuguese

nationality, resides in Lisbon.

9.      In April 1962 the private company Molda Plásticos Nesil, Lda,

of which he was one of the owners and the managing director, requested

the Directorate General for Industry for an authorisation to use an

automatic machine in order to manufacture plastic fibres

("monofilamentos"), from which material its products were made.

On 7 June 1962 the Director General for Industry refused this

authorisation on the ground that the request had not been submitted in

accordance with the terms of an Act of 11 March 1952 making certain

industrial activities subject to the issue of prior authorisation

("condicionamento industrial").

10.     Two further requests, of 2 January and 2 May 1963, were also

rejected.  However, the Under-Secretary of State for Industry granted

a fourth request on 28 December 1963, subject to two conditions: a

deposit of 500,000 escudos and proof, within sixty days, that the

company was engaging in the mechanical manufacture of synthetic cord

articles.

11.     In the meantime, on 9 July 1963, Molda Plásticos Nesil had

amended its articles of association.  A new company had been set up,

Indústrias de Plástico Póvoa Mar, Lda.  30% of the share capital was

held by Mr Neves e Silva, 20% by Mr Francisco Quintas and 50% by the

company Companhia Industrial de Cordoarias Téxteis e Metálicas Quintas

e Quintas, S.A.R.L.

12.     The applicant failed to comply with the conditions referred to

above, with the result that his authorisation lapsed.  The Quintas e

Quintas company, on the other hand, and three other competitors

obtained the authorisation.

13.     From 1968 to 1971 Mr Neves e Silva, who considered that the

manufacture of plastic fibres fell outside the scope of the Act of

11 March 1952, made numerous representations to the Prime Minister

(3 January 1968, 7 April 1970 and 13 August 1971) and the Secretary of

State for Industry (2 August 1968, 12 July and 27 November 1969,

31 March 1970), but without success.

14.     On 11 May 1972 he instituted proceedings in the Lisbon

Administrative Court (auditoria administrativa) against the State, a

chief engineer in the Directorate General for Industry and the two

other shareholders in the Povóa Mar company.  He alleged in particular

that the chief engineer had acted fraudulently in the exercise of his

official duties and that the third and fourth defendants had derived

benefit from the operation.  Against the State he relied on Articles 2

and 3 of Legislative Decree no. 48.051 of 21 November 1967 on the

State's non-contractual liability for acts of public administration.

These provisions are worded as follows:

Article 2

"1.     The State and other public bodies shall be liable to third

parties in civil law for such breaches of the latter's rights, or of

legal provisions designed to protect the latter's interests, as are

caused by unlawful and culpable acts (actos ilícitos culposamente

practicados) of their agencies or officials in, or as a result of, the

performance of their duties.

2.      Where any compensation is paid pursuant to the previous

paragraph, the State and other public bodies shall have a right of

recourse against the members of the agency or the officials at fault

if they failed to act with proper diligence."

Article 3

"1.     Members of the agency and officials of the State and other

public bodies shall be liable to third parties in civil law for

unlawful acts in breach of their rights, or of legal provisions

designed to protect the interests of such parties, where they have

exceeded their powers or if they acted with wrongful intent in

exercising them.

2.      The public body shall always be jointly liable with the

members of the agency or the officials concerned for acts performed

with wrongful intent."

15.     After receiving the originating application (petição inicial),

the court issued a summons to the defendants and requested them to

lodge their submissions in reply (contestação).

The chief engineer and the two above-mentioned shareholders filed

their submissions on 2 and 19 October 1972.  The State, represented by

State Counsel, transmitted its observations on 21 December, after an

extension of the time-limit.  The applicant communicated his reply

(réplica) on 12 January 1973 and the defendants submitted their

rejoinder (tréplica) ten days later.

16.     On 24 February 1973 the court decided to hold a hearing on

preliminary objections raised by the defendants, namely, that the

applicant lacked locus standi (ilegitimidade), that the action was

time-barred (caducidade) and that the court did not have jurisdiction.

17.     State Counsel filed notice of an interlocutory appeal (agravo)

against this decision to the Supreme Administrative Court (Supremo

Tribunal Administrativo).  He lodged this application with the Lisbon

Administrative Court which, on 28 March 1973, ruled that the appeal

had suspensive effect and ordered its immediate transmission, with the

file, to the Supreme Administrative Court; this transmission in fact

took place on 2 May.

On 14 June the Supreme Administrative Court overruled the decision

attributing suspensive effect to the appeal and ordered the resumption

of the proceedings in the lower court.  On 7 November 1973 the file

was returned to the Registrar of the Administrative Court who, two

days later, forwarded it to the court.

On 17 May 1976, in accordance with the decision of the Supreme

Administrative Court, the Lisbon Administrative Court ordered that the

interlocutory appeal be joined to any appeal in the main proceedings.

18.     The preliminary hearing finally took place on 1 July 1976.

19.     At the applicant's request, on 15 July the court sent the file

to the National Commission of Inquiry (Comissão Nacional de

Inquérito), a body empowered to investigate complaints directed

against the unlawful activities of civil servants carried out before

25 April 1974, under the previous political regime.  The file was not

returned until 29 May 1978, after a finding by the National Commission

that the competent administrative authority had misused its powers.

20.     On 12 June 1978 the Lisbon Administrative Court ruled that it

lacked jurisdiction to hear the dispute, thereby bringing the

proceedings before that court to an end.

21.     Mr Neves e Silva was not notified of this decision until

25 January 1979, whereupon, on 6 February 1979, he filed notice of an

interlocutory appeal to the Supreme Administrative Court against it.

By an order of 7 February 1979, which the registrar communicated to

the applicant on 11 June 1979, the Lisbon Administrative Court

declared the appeal admissible.  The parties submitted their

observations and on 3 October, after calculating the costs and

expenses (custas) of the proceedings, the court ordered that the file

be transmitted to the Supreme Administrative Court, which acknowledged

receipt on 13 March 1980.

22.     On 16 May 1980 the Supreme Administrative Court was informed

that Mr Francisco Quintas had died and it thereupon stayed the

proceedings.  On 1 October the applicant applied to it for leave to

continue the proceedings against the deceased's heirs (incidente de

habilitação - Articles 371 to 377 of the Code of Civil Procedure).

However, he had to file a fresh request on 18 May 1981, the first

having been ruled inadmissible because of a procedural defect.

On 30 May 1981 the Supreme Administrative Court accorded the

defendants a period of eight days within which to lodge their

submissions in reply (contestação).  On 26 November 1981 it allowed

the applicant's request and ordered that the proceedings be resumed.

23.     By a judgment of 11 November 1982, notified to the parties on

15 November, the Supreme Administrative Court held that the Lisbon

Administrative Court had jurisdiction to hear the action for damages,

but only in so far as it was directed against the State, and not

against the other defendants.  Following calculation of costs and

expenses, it returned the file to the Registrar of the Administrative

Court on 30 June 1983.  The file was registered on 3 October and did

not reach the court until 25 October.

24.     In its decision (despacho saneador) of 13 March 1984, the

Lisbon Administrative Court found that the right relied on was

statute-barred (prescrição).  It was accepted that the applicant had

locus standi, but he had not instituted proceedings in the court until

11 May 1972 and accordingly not within the three years following

25 November 1968, the date on which his request of 2 August 1968 had

been rejected by the Secretary of State for Industry.  He had

therefore failed to satisfy the requirement laid down in

Article 498 para. 1 of the Civil Code.

25.     On 26 March 1984 Mr Neves e Silva filed notice of appeal

(apelaçào) against this decision.  Two days later the first-instance

court found the appeal admissible and, on 10 May, ordered that it be

forwarded to the higher court.  On 6 June 1984 the judge rapporteur

gave the parties until 26 June to submit their observations

(alegações).  By a judgment of 30 May 1985, notified to the parties on

9 June, the Supreme Administrative Court upheld the decision of the

Lisbon Administrative Court.

26.     On 7 July 1985 the applicant appealed to the Supreme

Administrative Court in plenary session (Pleno).

The judge rapporteur noted that an appeal against a judgment of the

Supreme Administrative Court sitting in its appellate capacity (em

segundo grau de jurisdiçào) only lay where there were conflicting

judgments (oposiçào de julgamentos).  He therefore found the appeal

inadmissible and ordered the applicant to pay the costs.

The applicant then lodged a further appeal (reclamação) to the

Conferencia, a judicial committee consisting of the judge rapporteur

and two other members of the court: he argued that the existence of

only two levels of jurisdiction was unconstitutional and that the

order that he should bear the costs was unjust.  On 4 March 1986 this

committee upheld the judge rapporteur's decision.

II.     Situation of the administrative courts in Portugal

27.     The Government themselves conceded that since the restoration

of democracy in April 1974 a certain backlog had built up in the

Portuguese administrative courts.

During the period 1974-1984, there was a substantial upsurge in the

number of cases coming before the Lisbon Administrative Court: 78 in

1974, 142 in 1977, 184 in 1979, 233 in 1983 and 229 in 1984.

Similarly, the number of cases registered in the Supreme

Administrative Court increased considerably: 294 in 1974, 815 in 1977,

1,638 in 1978, 1,688 in 1983 and 1,983 in 1984.

28.     In order to relieve the workload of the Supreme Administrative

Court, Legislative Decrees of 27 April and 29 November 1984 introduced

major changes in the organisation and functions of the administrative

courts.  The first-instance administrative courts (tribunais

administrativos de circulo, formerly auditorias administrativas) now

have jurisdiction to hear disputes concerning the acts of the

administration (public-law bodies, directors general and other

authorities).  They may also comprise several chambers.  They sit in

Lisbon, Oporto and Coimbra.

29.     In addition to legislative reform, the Government took a

number of measures intended to reduce the backlog, in the

administrative courts in the short term.  Under Legislative

Decree no. 250/74 of 12 June 1974 these courts were given greater

resources, particularly in terms of staff.

In the Lisbon Administrative Court, which had only one judge in 1974,

three posts of auxiliary judge were created up to 1984 and five others

in October 1987.  At the same time the number of registry officials

was increased from three in 1976 to four in 1977, five in 1980 and

eight in 1981.

In the Supreme Administrative Court, the number of judges rose from

six in 1977 to sixteen in 1980 and that of auxiliary judges to seven

in 1984; the number of officials increased from thirty-two in 1980 to

thirty-seven in 1981.

PROCEEDINGS BEFORE THE COMMISSION

30.     In his application of 17 October 1984 (no. 11213/84),

Mr Neves e Silva complained that the administrative courts had not

heard his case within a reasonable time, within the meaning of

Article 6 para. 1 (art. 6-1) of the Convention.

The Commission found the application admissible on 13 October 1986.

In its report of 17 December 1987 (Article 31) (art. 31), it expressed

the unanimous opinion that there had been a violation of Article 6 para. 1

(art. 6-1).  The full text of its opinion is reproduced as an annex to

this judgment.

THE GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT

31.     In their memorial the Government requested the Court to hold

"that it does not have jurisdiction to decide the merits of the case

because the applicant is not a 'victim' within the meaning of

Article 25 (art. 25) of the Convention;

in the alternative, that Article 6 para. 1 (art. 6-1) of the ...

Convention ... is inapplicable in the instant case and that the Court

does not have jurisdiction to decide the merits of the case because

the application is incompatible with the provisions of the Convention;

and, should the Court reach a different conclusion in this respect, to

find

that there has been no violation of Article 6 para. 1 (art. 6-1)

of the Convention".

AS TO THE LAW

32.     Mr Neves e Silva complained that the duration of the action

for damages which he had brought against the State in the Lisbon

Administrative Court exceeded the reasonable time referred to in

Article 6 para. 1 (art. 6-1), according to which

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time by (a)

... tribunal ...".

33.     Primarily, the Government contended before the Court, as they

had done before the Commission, that the application was inadmissible

on the ground of its incompatibility ratione personae and ratione

materiae with the provisions of the Convention.  In the alternative,

they argued that there had been no violation of Article 6 para. 1 (art. 6-1).

I.      THE PRELIMINARY OBJECTIONS RAISED BY THE GOVERNMENT

34.     It is necessary in the first place to consider the

applicability of Article 6 (art. 6).  The Government's submission

in this respect appears more far-reaching than the objection that the

applicant lacked the status of a "victim" within the meaning of

Article 25 para. 1 (art. 25-1).  It goes to the very jurisdiction of the

Court and not merely to the admissibility of the application.

A.  The applicability of Article 6 para. 1 (art. 6-1)

35.     In the Government's view, the Lisbon Administrative Court did

not "determine" a "contestation" (dispute) by its judgment of

13 March 1984.  It found that the right relied on was statute-barred

and therefore did not have to rule on the merits of the applicant's

claim.  In addition, the applicant could not rely on a pre-existing

"right" in his favour because the decision to grant the authorisation

to manufacture plastic fibres fell within the discretion of the

administrative authorities.  The latter had in fact rejected all the

requests made by Molda Plásticos Nesil with the exception of the

fourth, granted subject to two conditions which were subsequently not

satisfied (see paragraphs 10 and 12 above).  Any right to compensation

generated by these decisions of the official of the Directorate

General for Industry was vested solely in the company Póvoa Mar which

had alone been involved in a direct relationship with the

administrative authorities.  Finally, the State's intervention

precluded classifying the right in question as a "civil right".  The

public authorities were free to determine the expediency of granting

the authorisation concerned, so that their decision in this matter was

to be regarded as a "public-law measure".

36.     The Commission, for its part, took the view that there had

been a "contestation", in particular because the proceedings had

involved the completion of various procedural steps and the submission

of several written observations.  Referring to the Baraona judgment of

8 July 1987 (Series A no. 122), it also concluded that the present

case concerned a "civil right".  In its view, the two cases raised

similar legal problems.

37.     Article 6 para. 1 (art. 6-1) extends to "contestations" (disputes)

over (civil) "rights" which can be said, at least on arguable grounds,

to be recognised under domestic law, irrespective of whether they are

also protected under the Convention (see, amongst other authorities,

the Golder judgment of 21 February 1975, Series A no. 18, p. 16, para. 33,

and the H. v. Belgium judgment of 30 November 1987, Series A

no. 127-B, p. 31, para. 40).

These conditions are satisfied in the present case.  In bringing an

action in the Lisbon Administrative Court, Mr Neves e Silva claimed

essentially that the fraudulent and unlawful conduct of a public

official, acting from questionable motives, entailed the civil

liability of the State.  Various preliminary and substantive

objections were raised by that State.  A "contestation" therefore

arose between them.  It no longer concerned the "right" to manufacture

plastic fibres, but the right to receive compensation for culpable

conduct on the part of the administrative authorities, pursuant to

Articles 2 and 3 of Legislative Decree no. 48.051 (see paragraph 14

above and the Baraona judgment, cited above, Series A no. 122, p. 17,

para. 41).  The Court must ascertain whether the applicant's arguments

were sufficiently tenable and not whether they were well-founded in

terms of the Portuguese legislation.  The National Commission of

Inquiry expressed the opinion that the Directorate General for

Industry had misused its powers (see paragraph 19 above).  For its

part, the Administrative Court recognised that the applicant had locus

standi (see paragraph 24 above); it did indeed find that the right was

statute-barred, but in doing so it determined the "contestation".  The

right claimed by the applicant consisted in financial reparation for

pecuniary damage.  It was therefore a "civil right", notwithstanding

the origin of the dispute and the jurisdiction of the administrative

courts (see the Baraona judgment, p. 18, para. 43).

Accordingly, Article 6 para. 1 (art. 6-1) is applicable in this case.

B.  Alleged lack of the status of "victim"

38.     In the Government's view, the applicant did not have the

status of a "victim" within the meaning of Article 25 para. 1 (art. 25-1).

Since he held only 30% of the share capital, he could not claim to

have suffered direct damage.  The Government pointed to a decision of

the Commission to this effect (decision of 28 January 1983 on the

admissibility of application no. 9266/81, Yarrow v. the United

Kingdom, Decisions and Reports no. 30, p. 155).

The Commission's reply to this argument was that the decision in

question concerned solely Article 1 of Protocol No. 1 (P1-1).

39.     The Court stresses that its task is to determine not whether

Mr Neves e Silva met with an unlawful refusal to grant him the

authorisation sought, but whether the case was heard within a

"reasonable time" as is required under Article 6 para. 1 (art. 6-1).

In this respect, he is entitled to claim the status of "victim" for

the purposes of Article 25 (art. 25).  The fact that he was a minority

shareholder is immaterial in this connection.  The national courts had

already recognised his right to a decision on the merits (binding

judgment ("assento") of the Supreme Court of Justice, of

1 February 1963, Diário do Govêrno, 1st Series, of 21 February 1963).

II.     ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

A.  Period to be taken into consideration

40.     In this case the period to be considered did not begin to run

when the action was first brought before the competent court

(11 May 1972; see paragraph 14 above) but only when, on 9 November 1978,

the Convention entered into force with regard to Portugal.  In

order to establish whether the time which elapsed following this date

was reasonable, it is however necessary to take account of the stage

which the proceedings had reached at that point.

The period in question ended on 9 June 1985, the date of the

notification of the Supreme Administrative Court's judgment to the

applicant (see paragraph 25 above); the latter's subsequent appeals

were not decisive for the outcome of the dispute (see paragraph 26

above).

The period to which the Court must direct its scrutiny therefore

lasted six years and seven months.

B.  Reasonableness of the length of the proceedings

41.     The reasonableness of the length of proceedings must be

assessed in the light of the particular circumstances of the case and

having regard, inter alia, to the complexity of the case and to the

conduct of the parties and the competent authorities (see, in

particular, the Zimmermann and Steiner judgment of 13 July 1983,

Series A no. 66, p. 11, para. 24).

42.     It is common ground between the participants in the

proceedings before the Court that the dispute was not a complex one;

however, their views differ with regard to the conduct of the

applicant and that of the judicial authorities.

According to the Government, Mr Neves e Silva lengthened the

proceedings considerably by seeking the referral of the case to the

National Commission of Inquiry (see paragraph 19 above) at the very

moment when the Administrative Court was about to give its ruling.

43.     This argument does not appear well founded.  Responsibility

for the delay resulting from the step taken by the applicant cannot be

imputed to him.  Although under Article 264 para. 1 of the Portuguese Code

of Civil Procedure it is for the parties to take the initiative with

regard to the progress of proceedings, Article 266 thereof places the

court under a duty to show diligence (see the Guincho judgment of

10 July 1984, Series A no. 81, p. 14, para. 32, and the Martins Moreira

judgment of 26 October 1988, Series A no. 143, p. 17, para. 46).  The

suspension of the proceedings requires a decision of the court

(Articles 276 to 279 of the Code of Civil Procedure) and, in this

case, could have been avoided if the Administrative Court had sent a

photocopy of the file to the National Commission of Inquiry.

44.     It remains to examine the conduct of the competent Portuguese

courts.

In the opinion of the applicant and the Commission, the cause of the

excessive length of the proceedings lies in the manner in which the

judges and the registries of the Lisbon Administrative Court and the

Supreme Administrative Court carried out their duties.  This was

aggravated by the chronic backlog in the case-loads of these courts.

The Government acknowledged that there were several periods of

inactivity in the proceedings, due principally to a "temporary

backlog" in the administrative courts, but they maintained that the

authorities had made every effort to correct this situation by

repeatedly taking appropriate measures (see paragraphs 27-29 above).

45.     The Court recognises the improvements made by the Portuguese

State in particular with regard to the organisation of the

administrative courts and tribunals.  However, it has here to examine

a specific case.  Mr Neves e Silva had to wait, after Portugal's

ratification of the Convention (see paragraph 40 above), more than six

years for a decision which, moreover, merely found that the right

relied on was statute-barred.  The delays in these proceedings, which

were instituted in 1972, cannot be regarded as the consequence of a

temporary crisis or justified thereby.

46.     Having regard to all the circumstances of the case, the Court

finds that the "reasonable time" was exceeded, resulting in a

violation of Article 6 para. 1 (art. 6-1).

III.    APPLICATION OF ARTICLE 50 (art. 50)

47.     Under Article 50 (art. 50) of the Convention:

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising from

the ... Convention, and if the internal law of the said Party allows

only partial reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

A.   Non-pecuniary damage

48.     The applicant claimed in the first place 8,000,000 escudos in

respect of non-pecuniary damage.  He maintained that for years he had

lived in a state of uncertainty regarding the outcome of his action,

which had caused him serious physical and psychological problems and

had ultimately brought about a deterioration in the state of his

health.

The Government considered this claim unreasonable because no causal

connection had been established between any violation of Article 6 para. 1

(art. 6-1) and the damage alleged.

The Commission's Delegate, for his part, recommended the award of

compensation, but made no suggestion as to the amount.

The Court considers that the applicant was under a degree of mental

stress during the period exceeding a "reasonable time" and undoubtedly

suffered non-pecuniary damage.  Making an assessment on an equitable

basis, as is required by Article 50 (art. 50), it awards him

500,000 escudos under this head.

B.   Costs and expenses

49.     Mr Neves e Silva also requested the payment of 400,000 escudos

for lawyers' fees and various expenses in connection with the

proceedings before the Portuguese courts.

The Government's Agent did not dispute this claim.

The applicant - who was awarded legal aid before the Convention organs -

is entitled to recover the costs incurred by him in Portugal in so

far as the length of the proceedings, attributable to the judicial

authorities (see paragraph 45 above), gave rise to additional expenses

for him.  Although he has not itemised such expenses, the Court has no

grounds for supposing that they were not actually incurred.

Furthermore, the amount claimed is not excessive.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.      Dismisses the objection based on the inapplicability of

Article 6 para. 1 (art. 6-1) of the Convention in this case;

2.      Dismisses the objection based on the applicant's lack of the

status of victim, within the meaning of Article 25 (art. 25);

3.      Holds that there has been a violation of Article 6 para. 1

(art. 6-1);

4.      Holds that the respondent State is to pay to the applicant

500,000 (five hundred thousand) escudos in respect of non-pecuniary

damage and 400,000 (four hundred thousand) escudos in respect of costs

and expenses;

5.      Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 27 April 1989.

Signed: Rolv RYSSDAL

        President

Signed: Marc-André EISSEN

        Registrar

 

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