FIRST SECTION
DECISION
Applications nos. 3705/10 and 3707/10
Jorge de Jesus FERREIRA ALVES against Portugal
and Cândido Ferreira ALVES against Portugal
The European Court of Human Rights (First Section), sitting on 1st July 2014 as a Committee composed of:
Mirjana Lazarova Trajkovska, President,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above applications lodged on 7 January 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Jorge de Jesus Ferreira Alves (“first applicant”, application no. 3705/10) and Mr Cândido Ferreira Alves (“second applicant”, application no. 3707/10), are Portuguese nationals, who were born in 1953 and in 1944 and live in Matosinhos (Portugal) and in São Paulo (Brazil), respectively.
2. The second applicant was represented before the Court by the first applicant, a lawyer practising in Matosinhos.
3. The Portuguese Government (“the Government”) were represented by their Agent, Mrs M. F. da Graça Carvalho, Deputy Attorney-General.
A. The circumstances of the case
4. On 12 September 2003 the first applicant lodged an action in order to obtain the liquidation and division of the matrimonial property against his ex-wife before the Court of Oliveira de Azeméis (proc. no. 1038-B/93).
5. On 6 October 2003 the first applicant was appointed as the administrator of the estate (cabeça-de-casal). On 31 October he submitted a list of the common assets (relação de bens) and debts of the spouses.
6. On 12 November 2003 the second applicant requested to intervene in the proceedings alleging that he was a creditor of some of the debts.
7. The first applicant’s ex-wife and the second applicant were formally summoned on 4 December and 9 December 2003, respectively.
8. In December 2003, the second applicant lodged a request with the court complaining that he had not been notified of the administrator’s inventory. Following his complaint, the court ordered his notification on 6 January 2004.
9. On 26 January 2004 the first applicant’s ex-wife contested the inventory of the common assets and debts submitted and requested the Bank of Portugal to inform the court about all the applicants’ bank accounts.
10. On 11 February 2004 the first applicant was asked to submit observations in this regard. On 26 February 2004 he submitted his reply, requesting the Bank of Portugal to provide also information about his ex‑wife’s bank accounts.
11. On 22 March 2004 the Bank of Portugal was notified with regard to the above requests and forwarded them to different banks, including Bank C.
12. On 7 May 2004, Bank C. opposed the court’s request, invoking banking secrecy. Between 12 May 2004 and 25 November 2004 Bank C. lodged different appeals against several orders of the court which requested it to lift bank secrecy with regard to its clients. On 25 November 2004 the Court of Appeal revoked the previous orders and established that the first instance court should seek the applicants’ authorization before asking their banking details to Bank C.
13. Between 24 May and 22 October 2004 the first applicant and his ex-wife lodged several requests with the court concerning the banking statements of the applicants and their brothers. In this regard, the court requested the banks a copy of the banking statements of the applicants and their brothers on 22 November 2004.
14. On 13 December 2004, the first applicant authorised Banks C. and B. to provide his banking details to the court.
15. On 9 May 2005 the first applicant submitted new evidence to the court in order to demonstrate that he had never had any account in Banks C. and B.
16. On 19 May 2005 the first applicant informed the court that he wanted all his witnesses to be heard in court.
17. On 25 May 2005 the court suspended the proceedings for 30 days on the ground of illness of the first applicant’s ex-wife lawyer.
18. On an unknown date the court scheduled the inquiry of the first applicant’s witnesses for 13 October 2005. On the day of the inquiry, the hearing was postponed to the 18 October. The first applicant eventually waived the inquiry of his witnesses and requested the hearing to be cancelled.
19. On 17 November 2005 the court scheduled a meeting between the parties (conferência de interessados) for 12 January 2006. On the same date, the court issued an order (despacho) concerning the applicant’s ex-wife complaint in relation to the inventory (see § 9), partially granting her request. On 29 November 2005 the first applicant requested a clarification of this order, which was granted on 20 December 2005.
20. On 24 January 2006 the court appointed an expert to evaluate the immovable property included in the inventory.
21. On 8 March 2006 the court deliberated about some questions which were under dispute in the proceedings and recognised the second applicant’s debts against the first applicant.
22. On 2 May 2006 the expert requested an extension of the deadline to submit his report, which was granted in the following day.
23. On 22 May 2006 the second applicant joined the appeals which had been lodged by the first applicant in the proceedings, with respect to the points which concerned him.
24. On 8 June 2006 the court appointed an expert to evaluate the movable property.
25. On 9 June 2006 the first applicant was notified of the expert’s report regarding the evaluation of the immovable property.
26. On 21 June 2006 he requested clarifications of the reasoning of the report.
27. On 5 September 2006 the first applicant was notified of the clarifications. On 14 September 2006 he requested a second evaluation. This request was dismissed on 16 November 2006. He challenged the decision before the Court of Appeal on 27 November 2011.
28. On 12 October 2006 the first applicant was notified of the expert’s report concerning the movable assets. He requested clarifications alleging that some assets had not been listed in the report.
29. On 23 February 2007, the court granted his request, accepting that the missing goods should be included in the list of the common assets. The first applicant challenged this decision before the Court of Appeal.
30. On 31 May 2007 the meeting of the parties was resumed.
31. On 16 October 2007 the court approved the plan concerning the division of property.
32. On 18 October 2007 the first applicant challenged the outcome of the proceedings before the Court of Appeal of Porto.
33. On 9 January 2008 the case-file was sent to the court of appeal of Porto with a note of the judge of the Court of Oliveira de Azeméis of 7 January 2008, confirming all the decisions that had been adopted at the first level of jurisdiction. On 12 January 2008 the applicant was notified of the note.
34. On 9 March 2009 the Court of Appeal dismissed all the appeals lodged by the first applicant.
35. The first applicant challenged this decision before the Supreme Court of Justice. He did not complain about the fact that he had not been able to reply to the judge’s note.
36. The Supreme Court dismissed the appeal on 13 October 2009.
COMPLAINTS
37. The applicants complained under Articles 6, 8, 13 and 14 and 1 of Protocol no 1 of the Convention about the proceedings. In particular, they complain about the undue length of proceedings and the lack of an effective remedy in this regard. The first applicant further complained that he had not been able to reply to the note of 7 January 2007, in contradiction with the principle of equality of arms.
THE LAW
A. Joinder of the applications
38. The Court first considers that in accordance with Rule 42 § 1 of the Rules of the Court, the applications should be joined, given that they both concern the same domestic proceedings and the legal issues raised are the same.
B. Complaints under Articles 6 § 1 and 13 of the Convention
39. The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement. They also complained that they had not had an effective remedy in this respect. They 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...”
1. Application no. 3705/10
40. The period to be considered began on 12 September 2003, when the first applicant lodged his application before the Court of Oliveira de Azeméis. It ended on 13 October 2009, when the Supreme Court of Justice dismissed his final appeal. It therefore lasted six years and one month.
41. The Government argued that the length of proceedings was attributable to the applicant, who took advantage of every avenue of appeal available to him, even those without any real prospect of success.
42. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).
43. The Court has consistently held that applicants cannot be blamed for making full use of the remedies available to them under domestic law (see, mutatis mutandis, Eckle v. Germany, 15 July 1982, § 82, Series A no. 51). Nonetheless, the applicant’s behaviour, in itself legitimate, constitutes an objective fact which cannot be attributed to the respondent State and which must be taken into account for the purpose of determining whether or not the reasonable time referred to in Article 6 § 1 has been exceeded (see, mutatis mutandis, the above-mentioned Eckle judgment).
44. The Court firstly notes that the proceedings lasted six years and one month for three levels of jurisdictions.
45. As to the complexity of the proceedings, the Court does not consider the subject matter of the proceedings especially complex. However, it observes that the behaviour of the parties in the proceedings contributed to the complexity of the proceedings by making the procedural aspects of the case particularly arduous.
46. With respect to the conduct of the applicant, the Court observes that he contributed to some of the length of the proceedings. It must be noted that far from helping to expedite the proceedings, the applicant sometimes resorted to actions – including contradictory requests to the court (§§ 14-15, §§ 16 and 18), - likely to delay matters.
47. With respect to the conduct of the national authorities, the Court recalls that a delay at some stage may be accepted if the overall duration of the proceedings cannot be deemed excessive (see, for example, Pretto and Others v. Italy, judgment of 8 December 1983, § 37, Series A no. 71). The Court considers that in the present case, taking into account the applicant’s and other parties’ appeals and requests in the proceedings, it does not find any substantial period of inactivity for which the authorities could be held responsible. Furthermore, it notes that the courts did not remain passive when faced with the parties’ applications and appeals in the proceedings.
48. Therefore, having regard to the conduct of the applicant and the national authorities and considering that the proceedings lasted six years and one month for three levels of jurisdiction, the Court does not find any reasonable delay amounting to a violation of the Article 6 § 1 of the Convention.
49. It follows that this complaint must be rejected as manifestly ill‑founded in accordance with Article 35 §§ 3 and 4 of the Convention.
50. As to the complaint regarding the lack of effective remedies before the domestic courts, the Court recalls that Article 13 requires the State to provide an effective legal remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Sürmeli v. Germany [GC], no. 75529/01, § 98, 8 June 2006). Considering that the complaint about the excessive length of the civil proceedings is inadmissible as manifestly ill-founded, the Court finds that the applicant did not have an arguable claim that his right to an effective remedy within the meaning of Article 13 was violated. It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
2. Application no. 3707/10
51. As regards the second applicant’s complaint about the excessive length of the proceedings and the lack of an effective remedy in that regard, the Court observes that, as the applicant did not join the first applicant’s appeal before the Supreme Court of Justice, the final domestic decision to be taken into account for the purposes of calculating the six-month period within the meaning of Article 35 § 1 of the Convention is, therefore, the decision adopted by the Court of Appeal of Porto on 9 March 2009. The applicant lodged his application on 7 January 2010, which is more than six months after the date of the final decision. It follows that the complaints have been introduced out of time and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.
C. Other complaints
52. Invoking Article 6 § 1 of the Convention, the first applicant complained that the principle of equality of arms had been violated. In particular, he argued that he had not been able to reply to a note written by the judge of the court of Oliveira de Azeméis and sent to the Court of Appeal with the case-file on 9 January 2008.
53. The Government contested that argument and argued that nothing in the documents showed that the applicant had intended to reply to the note and that he had been prevented of doing so. They also objected that the applicant had not suffered any significant disadvantage.
54. The Court does not consider it necessary to examine all the arguments raised by the Government since the application is in any event inadmissible for the following reasons.
55. The Court reiterates that the purpose of the exhaustion rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Zarb Adami v. Malta (dec.), no. 17209/02, 24 May 2005). The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach (see Aksoy v. Turkey, 18 December 1996, § 51, Reports of Judgments and Decisions 1996-VI).
56. In the present case, the Court notes that the applicant had not complained about the fact that he had not been given the opportunity to submit his reply, before the Supreme Court of Justice (see § 35).
57. It follows that the complaint must be rejected under Article 35 §§ 3 and 4 of the Convention for non-exhaustion of domestic remedies.
58. The applicants also alleged violations under Articles 6, 8 and 14 of the Convention and Article 1 of Protocol no 1 to the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the applications is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
André WampachMirjana Lazarova Trajkovska
Deputy RegistrarPresident
Full & Egal Universal Law Academy