Information Note on the Court’s case-law No. 73
March 2005
Cruz da Silva Coelho v. Portugal (dec.) - 9388/02
Decision 31.3.2005 [Section II]
Article 6
Civil proceedings
Article 6-1
Access to court
Impossibility to obtain a ruling on a case-law conflict: admissible
The applicant’s 19-year-old son drowned in a river next to a beach frequented by holidaymakers. According to the facts as established by the domestic courts, the victim, who was unable to swim, had been walking by the water, which had been no higher than knee level, when he had fallen into a hole deeper than his own height which had opened up at the bottom of the river. The hole had been caused by the extraction of sand, altering the shape of the river bed. There had been no information or warning signs on display at the site of the accident. A young man attempted to save the applicant’s son but also drowned. The applicant brought an action for damages against the State, but without success. The parents of the young man who had died in the same way as the applicant’s son obtained a judgment from the Supreme Court in which the State was held liable for failing in its duty to supervise the beach. Relying on that judgment in so far as it concerned the same issue, the applicant appealed on points of law to the Supreme Court but was unsuccessful. She subsequently used the remedy available for ensuring coherence of case-law. Her application was dismissed as it had not been made within the time allowed and in the manner prescribed by domestic legislation – that is, before the Supreme Court had given judgment on the merits. Under domestic law, where the conclusion likely to be reached in a judgment conflicts with existing case-law, the President of the Supreme Court may rule, as long as the judgment has not been delivered, that the application should be examined by the civil divisions sitting as a full court. This examination by an enlarged bench may be requested by the parties or State Counsel’s Office before judgment is delivered; it must be proposed by the judges of the Supreme Court (the rapporteur, the other judges or the division presidents).
Admissible under Articles 2, 6 § 1 and 14 of the Convention. The objection as to non-exhaustion of domestic remedies was joined to the merits.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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