SECOND SECTION
DECISION
Application no. 41973/10
Ilie TOTOI
against Portugal
The European Court of Human Rights (Second Section), sitting on 17 September 2013 as a Committee composed of:
Dragoljub Popović, President,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Atilla Nalbant, Acting Deputy Section Registrar,
Having regard to the above application lodged on 23 July 2010,
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.
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Ilie Totoi, is a Romanian national, who was born in 1963 and lives in Baixa Da Banheira. He has been living in Portugal since 2002.
The Portuguese Government (“the Government”) were represented by their Agent, Ms. M. F. da Graça Carvalho, Deputy Attorney-General. The Romanian Government were invited to present their observations (article 36 § 1 of the Convention and Article 44 of the Rules of the Court) but decided not to intervene in the procedure.
The applicant complained under Article 6 §1 of the Convention about the length of civil proceedings in a labour dispute before the Court of Guimarães and subsequent enforcement proceedings before the Labour Court of Santarém (Tribunal de Trabalho de Santarém) which, on the date of the lodging of the present application, had lasted five years and two months and were still pending. In August 2007 the applicant was victim of a violent assault which resulted in his incapacity for work. A criminal procedure was started but then terminated in 2008 as the offenders had not been identified. The applicant then started a procedure before the Commission for the Protection of Victims of Crimes seeking compensation. On 13 July 2010 the Secretary of Justice accepted his request and granted to the applicant a compensation of 1,500 euros (EUR). The applicant considered such amount too low and decided to ask for compensation from the Ministry of Justice (Ministério da Justiça).
The part of the application concerning the length of proceedings was communicated to the Government.
THE LAW
The applicant complained that the overall length of the administrative and enforcement proceedings before the Courts of Guimarães and Santarém was excessive. 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 F. da Graça Carvalho, Procureur général adjoint, déclare que le gourvernement portugais offre de verser à M. Ilie Totoi, la somme de 3 250 euros couvrant tout préjudice moral et la somme de 400 euros couvrant l’ensemble des frais et dépens, au titre de la requête enregistrée sous le no 41973/10, portant sur le délai raisonnable.
Ces sommes seront exemptes de toute taxe éventuellement applicable et seront payée 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 §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 de la somme 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 reconnaît qu’en l’espèce il y eu violation de l’article 6 § 1 de la Convention."
The applicant was notified of this declaration but did not submit any reply to it.
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, [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).
The Court has established in a number of cases, including those brought against Portugal, its practice concerning complaints about the violation of the right to a fair trial and one’s right to a hearing within a reasonable time (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; regarding 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 the 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).
Relying on articles 3, 9 § 1, 14 and 17 of the Convention the applicant also complained about the amount set as a compensation for the assault he suffered and, without invoking any article of the Convention, about his precarious situation in Portugal.
In the light of all the material in its possession, and in so far as it has jurisdiction to examine these allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and, therefore, must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Atilla Nalbant Dragoljub Popović
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy