SECOND SECTION
DECISION
Application no. 70925/11
INECIL-INDÚSTRIA E ENGENHARIA CIVIL,SA
against Portugal
The European Court of Human Rights (Second Section), sitting on 1st October 2013 as a Committee composed of:
Dragoljub Popović, President,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Seçkin Erel, Acting Deputy Section Registrar,
Having regard to the above application lodged on 2 November 2011,
Having regard to the declaration submitted by the respondent Government on 18 February 2013 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Inecil-Indústria e Engenharia Civil, SA, is a Portuguese corporation. It was represented before the Court by Mr J. Sardinha, a lawyer practising in Lisbon.
The Portuguese Government (“the Government”) were represented by their Agent, Ms. M. F. da Graça Carvalho, Deputy Attorney-General.
The applicant complained under Article 6 § 1 of the Convention about the length of his civil procedure before the Administrative Court of Lisbon, (Tribunal Administrativo de Lisboa) which was followed by an execution procedure before the Administrative Court of Almada (Tribunal Administrativo de Almada). The proceedings were related to a building’s licensing request by the applicant to the Local Authority of Setúbal (Câmara Municipal de Setúbal).
The initial procedure started on 7 June 2001 and the Administrative Court of Lisbon adopted its decision on 25 May 2004; whilst the execution procedure started on 15 September 2004 and was concluded on 9 May 2011. Therefore the procedure lasted in total nine years and seven months. The application was communicated to the Government.
THE LAW
The applicant complained about the global length of an administrative procedure followed by an execution procedure (acção administrativa e acção executiva) before the Administrative Courts of Lisbon and Almada, which lasted almost 10 years. The execution procedure was carried before three levels of jurisdiction. He relied on Article 6 § 1 of the Convention.
After the failure of attempts to reach a friendly settlement, by a letter of 18 February 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“Je soussignée, Mme M. F. da Graça Carvalho, Procureur général adjointe, déclare que le gouvernement portugais offre de verser à INECIL – Indústria e Engenharia Civil, S.A., la somme de 2 000 euros couvrant tout préjudice moral et la somme de 1 200 euros couvrant l’ensemble des frais et dépens, au titre de la requête enregistrée sous le no 70925/11, portant sur le délai raisonnable.
Ces sommes seront exemptes de toute taxe éventuellement applicable et seront payées dans les trois mois suivant la date de la notification de la décision de radiation rendue par la Cour sur le fondement l’article 37 § 1 c) de la Convention. Le paiement vaudra règlement définitif de la cause.
A défaut de règlement dans ledit délai, le Gouvernement s’engage à verser, à compter de l’expiration de celui-ci et jusqu’au règlement effectif des sommes en question, un intérêt simple à un taux égal à celui de la facilité de prêt marginal de la Banque Centrale Européenne, augmenté de trois points de pourcentage.
Le Gouvernement reconnait qu’en l’espèce il y a eu violation de l’article 6 § 1 de la Convention.”
The applicant was notified of this declaration and on 4 May 2013, indicated that it was not satisfied with the terms of the unilateral declaration on the grounds that the amount proposed did not cover all the damages that it had suffered for the excessive delay in the resolution of the case that started on 7 June 2001 against the Local Authority of Setúbal. The applicant also argued that the case was still pending before the Portuguese Administrative Courts.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03, 18 September 2007).
The Court has established in a number of cases, including those brought against Portugal, its practice concerning complaints about the violation of Article 6 § 1 of the Convention (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006‑V; Majewski v. Poland, no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; concerning Portugal, see Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, 10 June 2008).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Seçkin Erel Dragoljub Popoviċ
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy