Resolution CM/ResDH(2010)61[1]
Execution of the judgments of the European Court of Human Rights
Antunes and Pires and Ferreira Alves No. 3 against Portugal
(Applications Nos. 7623/04 and 25053/05, judgments of 21 June 2007, final on 21 September 2007)
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 judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violation of the Convention found by the Court in these cases concerns the lack of a fair trial due to the failure to communicate to the applicants several documents presented by the public prosecutor and/or 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 judgments;
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 applicants the just satisfaction provided in the judgments (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 these cases and
DECIDES to close the examination of these cases.
Appendix to Resolution CM/ResDH(2010)61
Information on the measures taken to comply with the judgments in the cases of
Antunes and Pires and Ferreira Alves No. 3 against Portugal
Introductory case summary
These cases concern the violation of the applicants’ right to a fair trial due to the fact that several documents presented by the public prosecutor and/or the memoranda prepared by the first-instance judge for the appellate court during civil proceedings were not disclosed to them (violations of Article 6§1).
The Court found that their right to a fair trial had been breached since both kinds of documents should have been communicated to the applicants, first on the ground of their right to be informed and comment on all documents submitted in the proceedings and, secondly, due to the importance of these documents in arriving at the courts’ decisions.
I.Payments of just satisfaction and individual measures
a) Details of just satisfaction
Name and application number
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
Ferreira Alves No. 3
-
-
2.500 EUR
2.500 EUR
Paid on 13/12/2007
Antunes and Pires
No just satisfaction awarded
b) Individual measures
In both cases 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 applicants.
- Antunes and Pires case: in this case the proceedings did not concern the merits of the dispute between the applicants and the opposing party (a private party), but the amount of damages that the applicants were ordered to pay. The applicants claimed that the court had based its decision on the joint report of the experts of the court and of the opposing party, which the expert nominated by the applicants refused to join. The difference between the amount set by the court and that set by the expert nominated by the applicants is about 800 EUR. In this case, any suggestion of reopening the proceedings before the competent court seems to run up against the principle of legal certainty which the other party to the civil proceedings is entitled to. In these circumstances, it seems unnecessary to pursue the question of individual measures.
- Ferreira Alves No. 3 case: in this case, the applicant’s right to visit his daughter was limited following the proceedings at issue. The Portuguese authorities indicated that Portuguese law allowed the applicant, if he so wished, to bring new proceedings for the revision of his visiting rights.
II.General measures
The violations of Article 6§1 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.
The Portuguese authorities underlined that given the direct effect of the Convention in Portugal, publication and dissemination of the Court’s judgments to all competent courts should be sufficient to avoid similar violations. In this context they underline that the judgment of the Court in the case of Ferreira Alves No. 3 has been translated and sent out by the Prosecutor General of the Republic to all judicial districts along with the recommendation to renew efforts in favour of broader application of the adversarial argument in the context of cases brought before family courts. The judgment is also available on the Internet site of the Cabinet of Documentation and Comparative Law (), which comes under the Prosecutor General of the Republic.
III.Conclusions of the respondent state
The government considers that no other individual measure is required in these cases 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 3 June 2010 at the 1086th meeting of the Ministers’ Deputies
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