FOURTH SECTION
DECISION
Application no. 3230/14
Luísa Lúcia COSTA
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 26 September 2017 as a Committee composed of:
Egidijus Kūris, President,
Paulo Pinto de Albuquerque,
Iulia Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 27 December 2013,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Luísa Lúcia Costa, is a Portuguese national, who was born in 1935 and lives in Sardoal. She was represented before the Court by Mr J.J.F. Ferreira Alves, a lawyer practising in Matosinhos.
2. The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The proceedings before the Leiria Administrative and Tax Court
4. On 15 December 2005 proceedings were brought against the applicant, her husband and two other defendants before the Leiria Administrative and Tax Court (domestic proceedings no. 1175/05.8BELRA), seeking the annulment of a building permit that had previously been granted to them.
5. On an unknown date the applicant and her husband were summonsed to appear in the proceedings.
6. On 3 February 2006 they lodged their submissions in reply (contestação).
7. On 7 April 2006 the claimants lodged new submissions (resposta às exceções).
8. Between 13 April 2006 and 3 May 2007 the national judge twice identified shortcomings in the application (deficiências na petição inicial) submitted by the claimants; the claimants corrected their initial submissions twice; both times the applicant and her husband made fresh submissions in reply.
9. On 6 December 2007 the court delivered a preliminary decision setting out the facts that had already been established and those that had yet to be decided (despacho saneador); the decision was served on the applicant on 18 December 2007.
10. Between 10 January and 5 November 2008 the applicant and her husband asked that they be allowed to submit evidence (requerimento de prova) and an experts’ report (relatório dos peritos) was requested, drafted, submitted to the proceedings and notified to the applicant.
11. Between 18 December 2008 and 4 January 2010 the hearing was scheduled or adjourned six times – once at the applicant’s representative request and twice at the request of all parties to the proceedings. The hearing took place on 17 January 2011.
12. On 16 March 2009 the court suspended the proceedings for twenty days because the parties had declared their intention to reach an agreement. After having been contacted by the court on 21 September 2009, on 22 September 2009 the parties informed the court that no agreement had in fact been reached.
13. On 8 September 2011 the court delivered a decision with regard to the factual basis (matéria de facto).
14. On 11 April 2014 the court ruled in favour of the applicant and her husband.
2. Application no. 59513/13 before the Court
15. On 12 September 2013 Mr Manuel Martins Cascalheira, the applicant’s husband, lodged an application with the Court complaining about the length of domestic proceedings no. 1175/05. 8BELRA and the lack of an effective remedy in that respect.
16. The applicant’s representative in the present case, Mr Ferreira Alves, represented the applicant’s husband in respect of that application.
17. On 17 September 2015 the case was struck out of the list after a friendly settlement was reached between the parties. The settlement agreement stated that the Government of Portugal offered to pay the applicant’s husband 8,800 euros (EUR) in respect of any and all non-pecuniary damage and any and all costs and expenses. It also stated that the payment would constitute the final resolution of the case (see Cascalheira v. Portugal (dec.), no. 59513/13, 17 September 2015).
COMPLAINTS
18. Invoking Articles 6 § 1 and 13 of the Convention, the applicant complained about the length of the proceedings and about the lack of an effective remedy in this respect.
THE LAW
19. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement and that she did not have at her disposal an effective remedy in this respect.
She 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 ...”
20. The Government argued that the application was inadmissible as it constituted an abuse of the right of petition, given that Mr Ferreira Alves had failed to inform the Court that the applicant in the present case was the wife of the applicant in application no. 59513/13 and that they had appeared jointly before the domestic court.
21. The Court reiterates that 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 facts (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 (extracts)) 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 constituting an abuse of the right of application if applicants – despite their obligation under Article 47 § 7 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 Bekauri v. Georgia, (dec.) no. 14102/02, §§ 21-23, 10 April 2012).
22. The notion of abuse of the right of application is not limited to these scenarios, however. 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, § 65, 15 September 2009).
23. The Court emphasises that under Rule 44 A, “[t]he parties have a duty to cooperate fully in the conduct of the proceedings and, in particular, to take such action within their power as the Court considers necessary for the proper administration of justice ...”. The Court has repeatedly held that the rules of procedure laid down in national laws are intended to ensure the proper administration of justice and the principle of legal certainty and that the parties must be able to rely on their application. The same observation applies, a fortiori, to the Convention and the Rules of Court (see Miroļubovs, cited above, § 66).
24. The Court reiterates that it cannot be its task to deal with manifestly improper conduct on the part of applicants or their authorised representatives which creates unnecessary work for the Court that is incompatible with its proper functions under the Convention (see Petrović v. Serbia (dec.), nos. 56551/11 and 10 others, 18 October 2011, and Bekauri, cited above, § 21).
25. Turning to the circumstances of the present case, the Court notes that it was lodged while the application introduced by the applicant’s husband was still pending. In addition, the applicant in the present case and her husband in application no. 59513/13 were represented before the Court by the same lawyer.
26. While lodging the present application, Mr Ferreira Alves, who is a qualified lawyer with a fair knowledge of the Convention and of the Rules of Court, omitted to inform the Court that a case lodged by the applicant’s husband relating to the very same domestic proceedings in which both had intervened jointly as parties was pending before the Court.
27. Even if the lodging, at different times, of two separate applications concerning the length of the same set of domestic proceedings cannot be considered, per se, abusive (see, mutatis mutandis, De Cristofaro v. Italy (dec.), nos. 30464/07 and 7 others, §§ 47-48, 10 July 2012), in the present case, the Court does not see any legitimate reason why the applicant did not lodge her complaint together with her husband, in particular since both spouses were represented by Mr Ferreira Alves and were complaining about the length of the very same set of civil proceedings.
28. The Court also notes that it has already declared inadmissible other applications in which Mr Ferreira Alves was the representative on the grounds that they were essentially the same as other applications previously considered by the Court (see Aníbal Vieira & Filhos, Lda, and Ferreira da Costa v. Portugal (dec.), nos. 980/12 and 28385/12, 13 November 2012). Moreover, the Court has declared other applications lodged by Mr Ferreira Alves as abusive (see Martins Alves v. Portugal (dec.), no. 56297/11, 21 January 2014).
29. In this connection, the Court reiterates that lawyers must demonstrate a high level of professional prudence and genuine cooperation with the Court by avoiding the lodging of unmeritorious complaints. Otherwise, their credibility in the eyes of the Court will be undermined and – in the event of systematic abuses – they may be excluded from the proceedings under Rule 36 § 4 (b) and Rule 44D of the Rules of Court (see Martins Alves, cited above, § 16, with further references).
30. In view of the foregoing, the Court acknowledges the Government’s preliminary objection and considers that the conduct of the applicant’s representative in the present case was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention, and that the application must therefore be rejected as an abuse thereof, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 October 2017.
Andrea TamiettiEgidijus Kūris
Deputy RegistrarPresident
Full & Egal Universal Law Academy