Resolution CM/ResDH(2011)146[1]
Execution of the judgment of the European Court of Human Rights
Santos Pinto against Portugal
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”)[2],
Having regard to the judgment transmitted by the Court to the Committee once it became final;
Case name (App. No.)
Judgment of
Final on
Santos Pinto (39005/04)
20/05/2008
20/08/2008
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 as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;
Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;
Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);
Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;
DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and DECIDES to close the examination thereof.
Appendix to Resolution CM/ResDH(2011)146
Action report on the execution of the judgment of the European court of Human Rights
in the case of Rui Ferreira Santos Pinto
(Application No. 39005/04) against Portugal
Original French
I.IDENTIFICATION OF THE CASE
Date of judgment: 20 May 2008
Application No.: 39005/04
Name of applicant: Rui Ferreira Santos Pinto
Brief description of the violation:
The case concerns the violation of the applicant’s right of access to a court due to the dismissal, for lack of legal representation, of an appeal he lodged against an arbitral decision issued in the context of expropriation proceedings in respect of part of the applicant’s land, although a similar appeal in respect of another plot of the same property had been accepted (violation of Article 6§1of the Convention).
The European Court considered that the dismissal of the applicant’s appeal had been contrary to the principle of judicial certainty, given the difference in the assessment of identical situations by the same court. In one of the cases, on 29/04/2004, the Évora appeal court dismissed his appeal finding that there was no obligation to warn the appellant of the consequences of non-representation by counsel. In the other, the same court in a different composition, on 1/07/2004, found that the notification addressed to the applicant for the purposes of instructing counsel should have included information on the consequences of non-representation. As this had not been the case, it ordered that the proceedings be pursued even though the applicant was not represented.
It should be underlined that this was an isolated case.
II.INDIVIDUAL MEASURES:
The applicant made no claim in respect of just satisfaction. Accordingly the European Court of Human Rights considered that it was not necessary to make any award. The possibility of reviewing domestic decisions, following a decision of the European Court of Human Rights, is provided by Article 771 of the Code of Civil Procedure as modified by Decree-Law No. 303/07 of 24 August 2007 (which entered into force on 1 January 2008) and by Article 449 of the Code of Criminal Procedure as modified by Law No. 48/2007 of 29 August 2007 (which entered into force on 15 September 2007). Accordingly no individual measure is required.
(a)Payment of just satisfaction: /
Date: /
Amount: /
(b)Other: /
III.GENERAL MEASURES
(a)Publication: The judgment was immediately placed on line on the official site of the Procuradoria-Geral da República – Office for Documentation and comparative Law, and translated into Portuguese.
(b)Communication and dissemination: The judgment was communicated to the Superior Judicial Council on 28/05/2008 with a view to its dissemination.
(c)Other: The applicable legal rule is clear and no modification is necessary.
In fact, Article 33 of the Code of Civil Procedure provides, in the matter of failure to instruct counsel, as follows:
“If a party does not instruct counsel even though representation by counsel is obligatory, the court, of its own motion or at the request of the opposing party, orders that the party in question is notified with a view to instructing counsel within a specified time-limit or risk dismissal or discontinuance of his claim or the ineffectiveness of his defence.”
An unofficial translation of the text of the provisions of the Codes of Civil and Criminal Procedure concerning the possibility of reviewing domestic decisions following a decision of the European Court of Human Rights has been provided to the secretariat.
IV. CONCLUSION
The Portuguese authorities consider that the measures referred to above are sufficient to ensure the execution of the judgment and that no further individual or general measures are called for.
[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies
[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies.
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