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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GUINCHO v. PORTUGAL - 8990/80 [1984] ECHR 9 (10 July 1984) URL: http://www.bailii.org/eu/cases/ECHR/1984/9.html Cite as: [1984] ECHR 9, (1985) 7 EHRR 223

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In the Guincho case,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court (*), as a Chamber composed of the

following judges:

_______________

(*) Note by the registry: The revised Rules of Court, which entered

into force on 1 January 1983, are applicable to the present case.

_______________

Mr. G. Wiarda, President,

Mr. J. Cremona,

Mr. W. Ganshof van der Meersch,

Mr. F. Gölcüklü,

Mr. J. Pinheiro Farinha,

Mr. E. García de Enterría,

Mr. J. Gersing,

and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold,

Deputy Registrar

Having deliberated in private on 30 March and 23 June 1984,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case was brought before the Court by the European

Commission of Human Rights ("the Commission") and the Portuguese

Government ("the Government"). The case originated in an application

(No. 8990/80) against that State lodged with the Commission by a

Portuguese national, Mr. Manuel dos Santos Guincho, on 20 May 1980 in

accordance with Article 25 (art. 25) of the Convention.

2. The Commission's request and the Government's application were

lodged with the registry of the Court on 18 July and 26 September 1983

respectively, within the period of three months laid down by

Articles 32 para. 1 and 47 (art. 32-1, art. 47) of the Convention.

The request referred to Articles 44 and 48 (art. 44, art. 48) and to the

declaration whereby the Republic of Portugal recognised the compulsory

jurisdiction of the Court (Article 46) (art. 46). The application

referred to Article 48 (art. 48). The purpose of the request and the

application was to obtain a decision as to whether or not the

reasonable time requirement laid down in Article 6 para. 1 (art. 6-1)

of the Convention had been complied with.

3. In response to the inquiry made in accordance with Rule 33

para. 3 (d) of the Rules of Court, the applicant stated that he wished

to take part in the proceedings pending before the Court and

designated the lawyer who would represent him (Rule 30).

4. The Chamber of seven judges to be constituted included, as ex

officio members, Mr. J. Pinheiro Farinha, the elected judge of

Portuguese nationality (Article 43 of the Convention) (art. 43), and

Mr. G. Wiarda, the President of the Court (Rule 21 para. 3 (b) of the

Rules of Court). On 21 September 1983, the President of the Court drew

by lot, in the presence of the Registrar, the names of the five other

members, namely Mr. J. Cremona, Mr. W. Ganshof van der Meersch,

Mr. L. Liesch, Mr. F. Gölcüklü and Mr. J. Gersing (Article 43 in fine

of the Convention and Rule 21 para. 4) (art. 43).

Mr. E. García de Enterría, substitute judge, subsequently replaced

Mr. Liesch, who was prevented from taking further part in the

consideration of the case (Rules 22 para. 1 and 24 para. 1).

5. Mr. Wiarda, who had assumed the office of President of the

Chamber (Rule 21 para. 5), consulted, through the Registrar, the Agent

of the Government, the Delegate of the Commission and the lawyer for

the applicant regarding the need for a written procedure

(Rule 37 para. 1). He directed on 6 October 1983 that the Agent and

the lawyer should have until 6 January 1984 to file a memorial and

that the Delegate should be entitled to file a memorial in reply

within two months from the date of the transmission to him by the

Registrar of whichever of the aforesaid documents should last be

filed. The lawyer for Mr. Guincho waived this right in a letter

received at the registry on 11 October 1983.

On 7 October 1983, the Registrar, acting on the instructions of the

President, invited the Commission and the Government to produce

certain documents; he received them on 18 October and 10 November

respectively.

The Government filed their memorial with the registry on

3 January 1984; on 27 January, the Secretary to the Commission

informed the Registrar that the Delegate would be presenting his

observations at the hearings.

6. On 6 February, the President, after consulting, through the

Registrar, the Agent of the Government, the Delegate of the Commission

and the lawyer for the applicant, directed that the hearings should

open on 28 March (Rule 38). He also authorised the Agent and lawyer

to use the Portuguese language (Rule 27 paras. 2 and 3).

On 27 February, the lawyer for Mr. Guincho transmitted to the Court

his client's claims under Article 50 (art. 50) of the Convention; on

26 March, he replied in writing to various questions that the

Registrar had put to him on the instructions of the President.

7. The hearings were held in public at the Human Rights Building,

Strasbourg, on the appointed day. Immediately beforehand, the Court

had held a preparatory meeting.

There appeared before the Court:

- for the Government

Mr. J.N. da Cunha Rodrigues, Deputy Procurador-Geral, Agent;

Mr. A.V. Coelho, Judge on the Supreme Court

and Vice-Chairman of the Supreme Council

of the Judiciary,

Mr. J.A. Sacadura Garcia Marques, Secretary

General of the Ministry of Justice and

Director General of the Judicial Services, Counsel;

- for the Commission

Mr. J.C. Soyer, Delegate;

- for the applicant

Mr. J.A. Pires de Lima, advogado, Counsel.

The Court heard addresses by Mr. da Cunha Rodrigues and Mr. Sacadura

Garcia Marques for the Government, Mr. Soyer for the Commission and

Mr. Pires de Lima for the applicant, as well as their replies to its

questions. During the hearings, the Government produced a document to

the Court.

On 9 April and 21 May 1984, the registry received supplementary

answers from the applicant and then comments thereon from the

Government.

THE FACTS

8. The applicant is a Portuguese citizen, born in 1949. He works

as an electrician and resides in Lisbon.

On 18 August 1976, he was travelling in a car with Mr. Domingos

Lopes, who was the owner and driver of the car, and with the latter's

brother, Mr. José Carlos Lopes. At Alverca, the car entered into

collision with a vehicle belonging to the Canalux Company of Lisbon

and driven by Mr. Antonio Rodrigues Baptista Dinis. Mr. Guincho was

injured and lost the use of his left eye; on 18 May 1977, he was

certified as having a permanent partial disability.

9. After being notified of the accident by the local police, the

public prosecutor's department at the Vila Franca de Xira Regional

Court instituted criminal proceedings against the drivers of both

vehicles for causing unintentional bodily harm.

On 20 January 1977, the applicant learnt that the file on the case had

been closed as a result of an amnesty granted under a Legislative

Decree.

10. On 7 December 1978, Mr. Guincho and Mr. D. Lopes ("the

plaintiffs") commenced a civil action in the Vila Franca de Xira

Regional Court against Mr. Dinis, the Canalux Company and the

"Tranquilidade" Insurance Company ("the defendants"). The applicant

claimed damages of 350,000 Escudos.

Under Article 68 of the Road Traffic Code, civil liability actions in

road traffic matters must be conducted in accordance with summary

procedure. Under the Code of Civil Procedure (Articles 783 to 800),

this procedure is characterised, inter alia, by the reduction of

certain time-limits.

11. On 9 December 1978, the judge of the second chamber

(2° juizo) of the Vila Franca de Xira Regional Court granted the

plaintiffs legal aid and ordered service of the writ on the

defendants. In this connection, the judge issued a request for

service (oficio precatorio) in Lisbon, the defendants' place of

residence.

In principle, when such a request is received at a court the registry

has two days in which to submit it to the judge. The latter must then

order the writ to be dispatched for service within five days,

following which the relevant registry official is bound to execute the

request for service within a similar five-day interval unless he has a

justifiable excuse (Articles 159 and 167 of the Code of Civil

Procedure).

On 30 January, 28 February, 2 April, 4 May and 11 June 1979, the judge

of the first chamber of the Vila Franca de Xira Regional Court,

replacing the judge of the second chamber (whose post was vacant),

insisted that the request for service of the writ be given effect.

However, this was not done until 18 June.

12. The "Tranquilidade" Insurance Company filed its defence

(contestaçao) on 27 June contesting the plaintiffs' claims. It

applied to have a third party, Mr. José Lopes (see paragraph 8

above), joined in the proceedings (intervençao principal).

On 2 July 1979, Mr. Dinis and the Canalux Company filed their

defence. They indicated that at the appropriate moment they would be

seeking to have a medical examination of the plaintiffs.

13. The registry of the Vila Franca de Xira Regional Court

transmitted the file to the judge on 4 July.

On 28 January 1981, the judge directed that the defence pleadings be

communicated to the plaintiffs and that they be allowed five days to

reply to the interlocutory application by the "Tranquilidade"

Insurance Company.

In their reply filed on 9 February 1981, the plaintiffs took issue

with the other side's submissions and claimed that the interlocutory

application was a delaying tactic as Mr. José Lopes, who was the

brother of Mr. Domingos Lopes, had suffered no prejudice and had

expressly waived his right to claim damages. In addition, they

complained that they had not been notified until January 1981 of

defence pleadings dating back to June and July 1979, and informed the

Regional Court that Mr. Guincho had lodged a petition with the

European Commission of Human Rights in connection with the length of

the proceedings. The registry of the Regional Court did not transmit

this reply to the judge until 26 March 1981.

14. In the meantime on 10 February 1981, the judge had declared

the interlocutory application admissible on the ground that no

objection had been raised against it, and he directed that a summons

be served on Mr. José Lopes, who resided in Loures. A request for

service in that jurisdiction was issued on the same day and service

was effected on 26 February.

On 27 March 1981, the above-mentioned judge, having received late

notice of the objection to the application, decided nonetheless to

maintain his decision of 10 February 1981. In a preliminary decision

(despacho saneador) taken on the same day, he declared the main action

admissible and drew up a list of uncontested facts (especificaçao) and

a list of facts that had to be clarified at the hearing

(questionario).

15. The parties did not enter an appeal (agravo) against this

decision. On 29 April, 30 April and 5 May 1981, they filed in the

registry the list of witnesses they proposed to call.

Mr. Guincho and Mr. D. Lopes asked that one of their witnesses,

Maria do Sacramento Peixoto Silva, be heard at Almada, the seat of the

Regional Court within whose jurisdiction she was said by them to

reside. The judge consented on 18 May 1981 and a request for evidence

on commission (carta precatoria) was issued on 1 June.

On 8 June, the Almada Regional Court set the hearing down for

9 July 1981. However, the Court discovered soon afterwards that

Mrs. Silva did not reside within its jurisdiction; on 12 June, it

forwarded the request to the Seixal Regional Court, the competent

court in this respect.

16. On 26 June, the judge of the Seixal Regional Court issed a

direction to the effect that he would hear the witness on 12 October.

On 9 October, the lawyer representing the first two defendants sent

the judge a telegram saying that he could not be present because of

illness.

Mrs. Silva failed to appear on 12 October. The same day, the judge

fined her and directed that she be heard on 17 November 1981.

However, the lawyer once more notified the judge by telegram that he

was still unwell, and the witness did not attend.

The judge thereupon adjourned the hearing of the witness

until 10 February 1982; Mrs. Silva was finally examined on that date.

17. The evidence taken on commission was sent to the Vila Franca

de Xira Regional Court. The judge dealing with the case received it

on 16 February 1982. The following day, he submitted the file to the

two other judges of the full Court who certified it on 18 February.

On 19 February, he directed that the hearings be held on

12 March 1982.

The hearings could not be held on that day because of the absence of

the lawyer representing the first two defendants and of two other

persons, namely Fernanda do Carmo Oliveira, in respect of whom the

summons as requested by the "Tranquilidade" Insurance Company indicated

an address where she was not known, and a witness called by the

plaintiffs, the police officer Adriano da Cruz Surreira. The latter

witness had drawn up the report on the accident (see paragraphs 8 and

9 above) but had subsequently been transferred to Oporto.

The judge therefore adjourned the hearings until 16 June and then

until 15 December 1982. He also issued a request for the evidence of

the latter witness to be taken on commission in Oporto, as he had been

asked to do by counsel for Mr. Guincho and Mr. Lopes.

18. The Oporto Regional Court summoned Mr. Surreira to appear on

14 May 1982, but on that day neither he nor the lawyers representing

the plaintiffs and the first two defendants attended and the hearing

was deferred until 3 June. However on 18 May, the judge was informed

that the witness had again changed his residence and was serving in

Montalegre; the request for evidence on commission was therefore

forwarded to the Regional Court of that town.

The Montalegre Regional Court set the hearings down for 1 June 1982.

On that day, Mr. Surreira's superiors gave notice that the demands of

public service (razoes inadiaveis de servico publico) prevented his

attendance. Counsel on both sides also failed to appear.

Examination of the witness took place finally on 17 June 1982 and the

evidence on commission was remitted to the Vila Franca de Xira

Regional Court.

19. On 29 July 1982, because of the impending court vacation,

the competent judge decided to bring the hearings forward to

20 October 1982. The hearings were duly held on that day.

Judgment was given on 25 October 1982. The Regional Court found for

the plaintiffs; it held that they were entitled to damages from the

defendants within the limits of the statement of claim but subject to

the proviso that the liability of the "Tranquilidade" Insurance

Company could not exceed 200,000 Escudos. The Regional Court awarded

Mr. D. Lopes, compensation for repairs to the car and for pecuniary

and non-pecuniary prejudice. In the case of Mr. Guincho, on the

other hand, it considered that the amount of the award could not yet

be assessed, and it reserved the decision on quantum for the procedure

for "execution" of the judgment (liquidacao en execucao de sentenca)

in accordance with Article 661 para. 2 of the Code of Civil Procedure.

The judgment was notified in writing to the applicant on 3 November.

The Regional Court subsequently liquidated the costs and expenses,

having varied its decision with regard to this point in December 1982.

The applicant was given notification thereof on 9 December 1982 and

then on 17 January 1983.

None of the parties appealed.

20. On 22 September 1983, Mr. Guincho sought "execution" of the

judgment in the Vila Franca de Xira Regional Court. Prior to that, he

had received from the "Tranquiladade" Insurance Company part of the

sum claimed.

According to the evidence adduced before the Court, the Vila Franca de

Xira Regional Court has not yet fixed the quantum of compensation to

be awarded to the applicant.

The socio-political situation

21. The Government stressed that at the relevant time the

Portuguese legal system had to operate under exceptional circumstances

on account of the restoration of democracy in April 1974, the need to

consolidate the newly set up institutions and the repatriation of

almost a million people from the former colonies. The domestic courts

had to be reorganised in a period of serious economic recession. From

1974 to 1979, the volume of litigation almost doubled.

On 25 April 1974, there were only 336 judges in office, that is

approximately four times fewer judges per inhabitant than the European

average; by the end of 1983, the number had risen to 952. In 1976,

court administration posts totalled 2,844, including 20 per cent

vacant; currently, on the other hand, 5,566 of the 5,714 existing

posts are filled.

After the Constitution was published in 1976, several measures

relating to the administration of justice were taken. Notably, access

to legal aid was improved, Acts governing the judiciary, the Supreme

Council of the Judiciary and the office of the Procurador-Geral were

passed, a judicial re-organisation of the territory was carried out

and a Centre of Judicial Studies (Centro de Estudos Judiciarios) was

set up to train judges and judicial officers.

Situation at the Vila Franca de Xira Regional Court

22. Against this general background, the population of Vila Franca

de Xira increased by nearly one quarter between 1978 and 1984, partly

because of the privileged position of the town on an important main

road and partly because of the influx of people repatriated from the

former colonies.

According to the statistics supplied by the Government, the number of

cases, both civil and criminal, before the chambers of the Vila Franca

de Xira Regional Court increased sharply: 2,377 in 1976, 2,705 in

1977, 4,079 in 1978, 4,175 in 1979 and 5,485 in 1980. As far as civil

actions were concerned, the following figures were cited:

1978 - first chamber: 206

second chamber: 199

1979 - first chamber: 457

second chamber: 337

1980 - first chamber: 579

second chamber: 508

23. The established posts of judge in the second and first

chambers of the Vila Franca de Xira Regional Court remained vacant for

more than five months (from 7 January 1979 to 26 June 1979) and nine

months (21 June 1979 - 8 April 1980), respectively. On each occasion,

the judge sitting in the other chamber was obliged to deputise during

the period of vacancy; in particular, the judge of the first chamber

acted in this way in the applicant's case (see paragraph 11 above).

24. According to uncontested information furnished by

Mr. Guincho's representative, the lawyers in Vila Franca de Xira met

on 14 December 1979 and drew the attention of the Supreme Council of

the Judiciary and the Minister of Justice to the "chaotic" situation

of the Regional Court and asked for urgent measures to be taken, in

particular the appointment of another permanent judge, three seconded

assistant judges, an investigating judge, a registrar and six court

officials whose posts were then vacant.

On 18 February 1980, they raised the matter again with the Minister of

Justice. On 29 May, they sent a telegram to the Supreme Council of

the Judiciary once more urging the appointment of judges and

emphasising that it was "humanly impossible" for the two judges in

office to cope with the backlog of cases. On 27 February 1981, they

made further representations to the Minister and the Supreme Council.

On 19 March 1981, the judge of the second chamber himself requested

the relevant department of the Ministry of Justice to recruit a number

of court officials as a matter of urgency.

Steps taken by the Government

25. The Government pointed out that from 1 October 1980 to

19 February 1981, the four judges sitting on the Vila Franca de Xira

Regional Court were aided by a seconded assistant judge. Furthermore,

as from March 1981, the Supreme Council of the Judiciary decided that

three judges from Lisbon should work on a part-time basis in in the

Vila Franca de Xira Regional Court.

The number of court officials varied as follows:

1977: 14 out of 17 posts filled;

1978: 15 out of 23 posts filled;

1979: 27 out of 33 posts filled;

1980: 24 out of 27 posts filled;

1981: 23 out of 26 posts filled;

1984: 33 posts, all filled.

According to the Government, the Supreme Council of the Judiciary

recommended especial speediness in the conduct of the applicant's

case.

PROCEEDINGS BEFORE THE COMMISSION

26. In his application of 20 May 1980 to the Commission

(no. 8990/80), Mr. Guincho complained of the length of civil

proceedings he had instituted on 7 December 1978 in the Vila Franca de

Xira Regional Court and relied on Article 6 para. 1 (art. 6-1) of the

Convention.

27. The Commission declared the application admissible on

6 July 1982. In its report of 10 March 1983 (Article 31) (art. 31), it

expressed the unanimous opinion that there had been a violation of

Article 6 para. 1 (art. 6-1). The full text of the Commission's

opinion is reproduced as an annex to the present judgment. (*)

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

28. The applicant complained of the length of the civil

proceedings brought by himself and Mr. Lopes in the Vila Franca de

Xira Regional Court. He invoked Article 6 para. 1 (art. 6-1) of the

Convention, which provides:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time by a

... tribunal ..."

The civil character of the litigation being clear and undisputed, the

sole issue to be decided in the present case is whether the

"reasonable time" requirement was complied with. In the Commission's

opinion, it was not, whereas the Government argued that there had been

no violation.

A. Period to be taken into account

29. The starting point of the relevant period - likewise a matter

on which there was no dispute - was 7 December 1978, the date

proceedings were instituted before the Vila Franca de Xira Regional

Court (see paragraph 10 above).

In the submission of the Government, the relevant "time" came to a

close on 25 October 1982 with the judgment which held that

Mr. Guincho was entitled to damages but reserved the assessment of the

quantum for the procedure for "execution" of the ruling (see

paragraph 19 above).

The Court, like the Commission, finds that this judgment did not

constitute the final decision since the Regional Court had not yet

assessed the damages to be awarded to Mr. Guincho (see paragraph 65

of the report). The Court notes that the action fell into two phases,

the first one lasting until 25 October 1982 and the second one, as yet

uncompleted, being the "execution" procedure. The latter procedure,

which was entirely dependent upon the initiative being taken by the

applicant, was not commenced until 23 September 1983, that is after

approximately eleven months (see paragraph 20 above); on the basis of

the evidence adduced before the Court, it cannot be open to any

criticism. The Court will consequently confine its examination to the

first phase, which ran from 7 December 1978 until 25 October 1982

(three years, ten months and eighteen days).

30. Such a lapse of time would at first sight seem unreasonable

for a single jurisdictional level (see, mutatis mutandis, the

Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66,

p. 11, para. 23), especially considering that the judgment in question

concerned solely the first phase of the action and did not constitute

the final decision on the applicant's claims. It thus calls for close

examination under Article 6 para. 1 (art. 6-1).

B. Criteria applicable

31. The reasonableness of the length of proceedings is to be

assessed in each case according to the particular circumstances and

having regard to the criteria laid down in the Court's case-law

(see, inter alia, the above-mentioned Zimmermann and Steiner judgment,

ibid., p. 11, para. 24).

32. In Portugal, the Government pointed out, civil procedure is

governed by the so-called "principle of determination": the power of

initiative rests with the parties (Article 264 para. 1 of the Code of

Civil Procedure) who must take all appropriate steps to further the

expeditious conduct of the litigation. In the opinion of the Court,

this principle does not however dispense the courts from ensuring the

expeditious trial of the action as required by Article 6 (art. 6)

(see the Buchholz judgment of 6 May 1981, Series A no. 42, p. 16,

para. 50). Moreover, Portuguese law places judges under a duty to

show diligence (Article 266 of the said Code); in addition,

Article 68 of the Road Traffic Code provides that cases such as

Mr. Guincho's should be dealt with under the summary procedure which

is characterised by, amongst other things, reduction of some

time-limits (see paragraph 10 above).

1. Complexity of the case

33. The Government acknowledged that the case was not complex in

substance. They nonetheless contended that the case became complex

through the behaviour of the parties, in particular as a result of the

interlocutory application by the insurance company and the failure of

witnesses and lawyers to appear (see paragraphs 12, 15-16 and

18 above). In the opinion of the Commission, on the other hand, the

proceedings did not entail any particular difficulty.

The Court agrees with the latter view: the circumstances adverted to

by the Government did not complicate the conduct of the proceedings in

a manner unusual for such litigation.

2. Conduct of the applicant

34. According to the Government, Mr. Guincho could have

accelerated the progress of the proceedings by addressing a complaint

to the Supreme Council of the Judiciary. In addition, various delays,

for example with regard to the appearance of the witnesses Maria Silva

and Adriano da Cruz Surreira, were said to be as much the

responsibility of the applicant as of the other parties. At the very

least, so the Government maintained, no blame could be laid at the

door of the Portuguese authorities for the period subsequent to

25 October 1982.

The Court has already given its ruling on this latter point (see

paragraph 29 above). With regard to the remaining arguments, the

Court would firstly note that the applicant was under no duty to refer

the matter to the Supreme Council of the Judiciary. Furthermore, the

taking of such a step would not have shortened the duration of the

procedure, since at most the Supreme Council could have imposed

disciplinary sanctions, if appropriate, on any judges or officials at

fault. Next, although the furnishing by Mr. Guincho of an incorrect

address may have somewhat delayed the hearing of Mrs. Silva

(see paragraphs 15 and 16 above), the period of time involved is

insignificant in comparison with the total length of the proceedings.

The other circumstances set out by the Government, and in particular

the failure to appear of witnesses and of lawyers for the defendants,

cannot, in the Court's view, be held against the applicant.

In sum, the dilatory nature of the proceedings cannot be attributed to

the applicant.

3. Conduct of the Portuguese authorities

35. From the evidence adduced, it can be seen that on two

occasions the case remained dormant: from 9 December 1978 until

18 June 1979, that is more than six months, for the execution of a

request sent to Lisbon for service of the writ on the defendants, and

then from 4 July 1979 until 28 January 1981, that is more than a year

and a half, for the transmission of the defence pleadings to the

plaintiffs (see paragraphs 11 and 13 above).

The Government acknowledged that matters were held up to a certain

extent during the two periods mentioned above, but they drew a

distinction betwen the rhythm at which the action proceeded and its

overall length; in the Government's submission, the latter factor

alone was material for the purposes of Article 6 para. 1 (art. 6-1)

and, in the particular circumstances, the overall length of the action

was acceptable.

The applicant contended that the existence of a total cessation of

activity during two years adversely affected the proceedings as a

whole.

36. The Court concurs in principle with the latter view. It would

also note that the two periods of almost total inactivity related to

the performance of procedural acts of a purely routine character, such

as the service of the writ on the defendants and the transmission of

the defence pleadings to the plaintiffs. These periods could thus

have been justified only by very exceptional circumstances (see,

mutatis mutandis, the above-mentioned Zimmermann and Steiner

judgment, Series A no. 66, p. 12, para. 27 in fine).

37. According to the Government, the abnormalities in the

proceedings before both the Vila Franca de Xira Regional Court and the

Lisbon Regional Court resulted from the disruption of institutions

that accompanied Portugal's return to democracy (see paragraph 21

above).

At the same time, the Government contended, the country was confronted

with a sudden and unforeseen increase in the volume of litigation. In

consequence, judges with little experience were called on to

administer justice in overburdened courts. Nonetheless, the competent

authorities, and notably the Supreme Council of the Judiciary, did

what they could to take the necessary remedial action

(see paragraph 25 above).

38. The Court recognises the value of the first argument. It

cannot overlook that the restoration of democracy as from April 1974

led Portugal to carry out an overhaul of its judicial system in

troubled circumstances which were without equivalent in most of the

other European countries and which were rendered more difficult by the

process of decolonisation as well as by the economic crisis (see

paragraph 21 above). Nor does the Court in any way underestimate the

efforts taken to improve the citizen's access to justice and the

administration of the courts, in particular after the promulgation of

the Constitution in 1976 (see paragraph 21 above).

Nonetheless, the Court must on this issue concur with the views of the

Commission and the applicant. In ratifying the Convention, Portugal

guaranteed to "secure to everyone within [its] jurisdiction the rights

and freedoms defined in Section I" (Article 1) (art. 1). In

particular, Portugal undertook the obligation of organising its legal

system so as to ensure compliance with the requirements of

Article 6 para. 1 (art. 6-1), including that of trial within a

"reasonable time" (see the above-mentioned Zimmermann and Steiner

judgment, Series A no. 66, p. 12, para. 29). The Court would once

more draw attention to the extreme importance of this requirement for

the proper administration of justice.

39. Furthermore, and without ignoring the general background

outlined above, the Court would point out that its task is confined in

principle to the examination of the particular case before it, which

essentially concerns one specific court.

At the Vila Franca de Xira Regional Court, for more than a year a

single judge had to deal with the business of two chambers because of

an unfilled vacancy: the post of judge was vacant in the second

chamber from 7 January until 26 June 1979 and then in the first

chamber from 21 June 1979 until 8 April 1980. At the same time, there

was a sharp rise in the number of pending cases, which more than

doubled between 1976 and 1980 (see paragraphs 22 and 23 above).

In order to eliminate the accumulated backlog, the competent

authorities decided in October 1980 to appoint an assistant judge; in

March 1981, they dispatched from Lisbon three judges to work in Vila

Franca de Xira on a part-time basis; the staff of the registry was

also greatly increased (see paragraph 25 above).

40. According to the established case-law of the Court, a

temporary backlog of court business does not engage the international

responsibility of the State concerned under the Convention provided

that the State takes effective remedial action with the requisite

promptness (see, as the most recent authority, the above-mentioned

Zimmermann and Steiner judgment, p. 12, para. 29).

In the present case, the Court notes, as did the Commission, that the

growth in the burden of work was spread over several years. The

Court would recall that following the promulgation of the Constitution

in 1976, various measures were introduced with a view to improving the

citizen's access to justice, at a time when nearly a million persons

repatriated from the former colonies were being resettled in Portugal

(see paragraphs 21 and 38 above). In these conditions, an appreciable

expansion in the volume of litigation was to be expected. In

addition, by December 1979 the lawyers practising at Vila Franca de

Xira had brought the matter to the attention of the Supreme Council of

the Judiciary and the Minister of Justice (see paragraph 24 above).

However, in the face of a state of affairs that had developed into one

of structural organisation, the steps taken in October 1980 and

March 1981 were evidently insufficient and belated. Although

reflecting the will to tackle the problem, they were, by their very

nature, incapable of achieving satisfactory results (see, mutatis

mutandis, the above-mentioned Zimmermann and Steiner judgment,

Series A no. 66, p. 13, para. 31).

41. Having regard to all the circumstances of the case, the Court

concludes that the exceptional difficulties encountered in Portugal

were not such as to deprive the applicant of his entitlement to a

judicial determination within "a reasonable time" (ibid., p. 13,

para. 32). There has accordingly been a breach of Article 6 para. 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

42. Article 50 (art. 50) reads as follows:

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising from

the ... Convention, and if the internal law of the said Party allows

only partial reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

In his written comments of 27 February 1984, Mr. Guincho sought under

the head of just satisfaction the interest that he would have earned

in two years on the damages - had they been recovered - of

350,000 Escudos claimed in his civil action.

43. The Government stated that Portuguese case-law already allows

account to be taken of inflation and monetary erosion. The

applicant's lawyer had, it was said, raised to 700,000 Escudos his

client's claims when replying on 9 February 1981 to the defence

pleadings (see paragraph 13 above); yet, in the procedure for

"execution" of the judgment, the lawyer had limited himself to the

initial sum specified.

Mr. Guincho contended, on the other hand, that inflation rates and

interest due on account of the inordinate length of proceedings

constitute two different things and that in any event he had been

obliged to curtail his claims since the sum covered by the insurance

policy was subject to a maximum ceiling of 200,000 Escudos.

44. The Court would recall that the failure to ensure trial within

a "reasonable time" stemmed directly from two periods of almost total

inactivity on the part of the Regional Courts of Vila Franca de Xira

and Lisbon (see paragraph 35 above); these periods total more than

two years. The resultant lapse of time, which was additional to the

normal length of the proceedings, delayed to a corresponding extent

the completion of the litigation. Not only did it reduce the

effectiveness of the action brought, but it also placed the applicant

in a state of uncertainty which still persists and in such a position

that even a final decision in his favour will not be able to provide

compensation for the lost interest.

Accordingly, the Court awards Mr. Guincho the sum of 150,000 Escudos

by way of just satisfaction for the purposes of Article 50 (art. 50).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a breach of Article 6 para. 1

(art. 6-1);

2. Holds that the respondent State is to pay the applicant one

hundred and fifty thousand (150,000) Escudos under Article 50

(art. 50).

Done in English and in French at the Human Rights Building,

Strasbourg, this tenth day of July, one thousand nine hundred and

eighty-four.

For the President

Signed: Walter GANSHOF VAN DER MEERSCH

Judge

For the Registrar

Signed: Herbert PETZOLD

Deputy Registrar