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You are here: BAILII >> Databases >> European Court of Human Rights >> MOREIRA DE AZEVEDO v. PORTUGAL - 11296/84 [1990] ECHR 26 (23 October 1990) URL: http://www.bailii.org/eu/cases/ECHR/1990/26.html Cite as: [1990] ECHR 26, (1991) 13 EHRR 721, 13 EHRR 721

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In the Moreira de Azevedo 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:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr J. Pinheiro Farinha,

Mr A. Spielmann,

Mr J. De Meyer,

Mr S.K. Martens,

Mrs E. Palm,

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

Registrar,

Having deliberated in private on 25 May and 26 September 1990,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 22/1989/182/240. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** The amendments to the Rules of Court which came into force on

1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 12 October 1989,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in an application (no. 11296/84) against the Republic of Portugal

lodged with the Commission under Article 25 (art. 25) by

Mr Manuel Moreira de Azevedo, a Portuguese national, on

16 November 1984.

2. The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Portugal

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as

to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Article 6 para. 1

(art. 6-1) of the Convention.

3. In response to the enquiry 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 and designated the lawyers

who would represent him (Rule 30).

4. The Chamber to be constituted included ex officio

Mr J. Pinheiro Farinha, the elected judge of Portuguese nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 25 November 1989,

in the presence of the Registrar, the President drew by lot the

names of the other five members, namely Mr J. Cremona,

Mr A. Spielmann, Mr J. De Meyer, Mr S.K. Martens and Mrs E. Palm

(Article 43 in fine of the Convention and Rule 21 para. 4)

(art. 43).

5. Mr Ryssdal assumed the office of President of the Chamber

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

of the Portuguese Government ("the Government"), the Delegate of

the Commission and a representative of the applicant on the need

for a written procedure (Rule 37 para. 1). In accordance with the

order made in consequence on 9 January 1990, the Registrar received

the applicant's memorial on 12 March 1990 and that of the

Government on 16 March. On 27 March the Secretary to the

Commission informed the Registrar that the Delegate would submit

his observations at the hearing.

6. Having consulted, through the Registrar, those who would be

appearing before the Court, the President had directed on

16 January 1990 that the oral proceedings should open on

23 May 1990 (Rule 38). In addition he had given the applicant's

lawyers leave to plead in Portuguese (Rule 27 paras. 2 and 3).

7. On 2 March the Commission supplied the Registrar with

several documents which he had requested on the President's

instructions.

8. The applicant's claims under Article 50 (art. 50) of the

Convention reached the registry on 11 May.

9. The hearing took place in public in the Human Rights

Building, Strasbourg, on the appointed day. The Court had held a

preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr I. Cabral Barreto, Deputy Principal

Public Prosecutor, Agent,

Mr A. Maduro, Judge at the Court of Auditors,

Mrs A. Miranda Rodrigues, Professor of Law at

the Catholic University of Oporto, Counsel;

(b) for the Commission

Mr A. Weitzel, Delegate;

(c) for the applicant

Mr J. Loureiro, advogado,

Mr M. Malvar, advogado, Counsel.

The Court heard addresses by Mr Cabral Barreto, Mr Maduro and

Mrs Miranda Rodrigues for the Government, by Mr Weitzel for the

Commission and by Mr Loureiro for the applicant, as well as their

replies to its questions and those of three of its members. On the

occasion of the hearing the representatives of the Government and

of the applicant produced various documents.

10. On 28 May the Registrar received from the Agent of the

Government a telex message concerning the application of Article 50

(art. 50).

AS TO THE FACTS

I. The circumstances of the case

11. Mr Manuel Moreira de Azevedo, who is a Portuguese national

and resides at Vila Nova de Famalicão, is a bus driver.

12. On 23 January 1977 one of his brothers-in-law,

Mr Bernardo Gonçalves de Sousa, shot him in the head following a

family quarrel. The applicant was rushed to the São João de Porto

hospital where he remained until 2 February 1977.

13. On the same day the police arrested the suspect and

communicated the facts to the Public Prosecutor, who requested the

investigating judge of the First-Instance Court of Vila Nova de

Famalicão to question him.

A. The investigation

1. The preliminary inquiry (inquérito preliminar

- 23 January 1977-21 May 1980)

14. Since there was insufficient evidence to establish the

offence of attempted murder, the investigating judge ordered,

on 24 January 1977, the provisional release of Mr Gonçalves de

Sousa, subject to the lodging of a security of 10,000 escudos. He

also decided to transmit the file to the Public Prosecutor for the

inquiry to be continued.

15. On 17 February a court medical officer examined the

applicant and asked that the medical report drawn up by the São

João de Porto hospital be communicated to him.

16. This report was supplied to him on 21 March and the Public

Prosecutor fixed the date of the medical examination for the 28th.

On that occasion the court medical officer noted that the injuries

resulting from the attack had led to Mr Moreira de Azevedo's being

unfit for work for a period of 90 days. On 28 April he expressed

the opinion that the applicant required another 30 days' sick

leave. On 26 May he pronounced the applicant to be recovered, but

prescribed other specialist examinations.

17. On 2 June 1977 the applicant stated that he wished to

intervene as an assistant (assistente) of the prosecuting authority

in the preliminary investigation. The investigating judge allowed

his application on 18 June 1977.

18. On 18 October and 7 November the applicant was examined by

an ear, nose and throat specialist and an opthalmologist.

19. On the recommendation of the opthalmologist he underwent a

neurological examination on 24 October 1978. This was followed on

11 June 1979 by an electroencephalogram and on 23 August by a

further medical examination ordered by the Public Prosecutor.

20. On 3 October 1979 the Public Prosecutor decided, at the

request of the court medical officer, to arrange for a further

neurological examination.

21. As the Oporto Medical Faculty informed him that the

applicant could not be examined until 1981, the Public Prosecutor

entrusted this task to the court medical officer, who was invited

to express an opinion in particular as to whether the assailant had

acted with "the intention of causing death".

22. In a report dated 8 May 1980, the medical officer concluded

that the applicant had recovered and that the period during which

he had been unfit for work was the period already established. He

also expressed the opinion that the assailant had indeed intended

to kill.

23. In the light of this report, the Public Prosecutor

communicated the file to the investigating judge on 21 May 1980,

requesting him to open the preliminary investigation.

2. Preliminary investigation (instrução preparatória

- 26 May 1980-5 July 1984)

24. On 26 May 1980 the investigating judge asked the Council of

Forensic Medicine (Conselho médico-legal) to examine the various

medical reports (Article 200 of the Code of Criminal Procedure),

but to no avail.

The file was transferred to the Criminal Investigation Court

(tribunal de instrução criminal) of Santo Tirso where it was

registered on 1 July 1982.

25. On 8 March 1982 the applicant wrote to the investigating

judge of Vila Nova de Famalicão seeking a further examination by

the court medical officer and criticising the length of the

proceedings.

26. On 6 July 1982 the judge of the Criminal Investigation

Court of Santo Tirso sought the opinion of the Public Prosecutor as

to whether an amnesty law was applicable.

27. In a letter of 13 October 1982, the applicant complained

that his letter of 8 March 1982 (see paragraph 25 above) had not

been added to the file; he repeated his request.

28. On 19 October 1982 the judge of the Criminal Investigation

Court of Santo Tirso, in his turn, instructed the Council of

Forensic Medicine to examine the medical reports and,

on 4 November, asked the court medical officer to clarify some

points in his report of 8 May 1980.

29. On 19 November 1982 the court medical officer recommended

a further neurological examination, which the judge ordered on

23 November.

30. In the meantime, by a letter of 13 November 1982 received

at the Criminal Investigation Court on 2 February 1983, the Council

of Forensic Medicine had asked the court medical officer to specify

the number of days during which the applicant had been unfit for

work and also to indicate the after-effects of the attack. On

23 February 1983 the medical officer described the injuries and

stated that the applicant had been unfit for work for 120 days and

still suffered from disability. He had lost a part of his skull

and was deaf in the left ear.

31. On 8 March 1983 Mr Moreira de Azevedo was examined by a

neurologist who sent his report to the judge on 5 July.

32. On 21 March 1984 the judge requested the court medical

officer to submit his report. He did so on 5 April 1984 and on the

same day the document was sent to the Council of Forensic Medicine.

33. On 26 April 1984 that body approved the findings of the

court medical officer's report, adding that the attack had resulted

in a disability and a total incapacity.

34. On 14 May 1984 the judge ordered that the applicant and the

accused be questioned on 24 May 1984. The applicant was questioned

on that date but the accused was unwell and did not appear.

35. On 25 May 1984 the applicant asked for five witnesses to be

heard.

36. On 28 May the judge decided that the accused should be

questioned on 7 June 1984. However, as the latter had absented

himself for an indefinite period, the bailiff was unable to serve

this order on him.

37. On 5 June 1984 Mr Moreira de Azevedo submitted a report by

the Public Health Department dated 15 April 1981 and drawn up

following a medical examination. According to this document he

suffered from a 64% incapacity.

38. On 6 June 1984 the judge issued a warrant for the accused's

arrest and, on 14 June, questioned the witnesses named by the

applicant.

39. On 1 July 1984 the police officer assigned to the case

informed the judge that Mr Gonçalves de Sousa had disappeared.

40. On 5 July 1984 the judge closed the preliminary

investigation and forwarded the file to the Public Prosecutor. On

10 July the latter requested the opening of adversarial

investigation proceedings and drew up the prosecution submissions

(acusação). He sought the accused's arrest, contending that

provisional release was not available to persons charged with

attempted murder.

3. The adversarial investigation proceedings (instrução

contraditória - 16 July 1984-27 July 1984)

41. On 16 July 1984 the judge declared the adversarial

investigation proceedings open and ordered the accused's arrest,

but the latter could still not be traced.

42. On 27 July the judge closed the investigation and forwarded

the file to the Public Prosecutor, who drew up the prosecution

submissions on 8 October 1984.

43. The accused was committed for trial on 16 November 1984 and

on 26 November 1984 was arrested and remanded in custody.

44. On 12 December 1984 the court scheduled the hearing for

5 February 1985.

45. On 21 December the applicant asked for evidence to be taken

from two witnesses.

B. The proceedings in the courts

1. The trial at first instance

46. On 5 February 1985, at the beginning of the hearing, the

applicant's lawyer submitted an oral request to the First-Instance

Court of Vila Nova de Famalicão that the fixing of the amount of

any compensation be deferred until the subsequent enforcement

proceedings ("liquidação em execução de sentença"), in accordance

with Article 34 para. 3 of the Code of Criminal Procedure.

47. On 18 February 1985 the court acquitted the accused on the

charge of attempted murder. However, it sentenced him to

14 months' imprisonment for causing grievous bodily harm and

ordered him to pay damages to the applicant in an amount to be

fixed in the enforcement proceedings.

48. The applicant and the accused filed appeals.

2. The judgment of the Court of Appeal of Oporto of 30 October 1985

49. On 30 October 1985 the Oporto Court of Appeal (tribunal de

relação) allowed Mr Gonçalves de Sousa's appeal. At the same time

it declared the criminal prosecution out of time

(five-year limitation period).

3. The judgment of the Supreme Court of 7 May 1986

50. Mr Moreira de Azevedo then appealed to the Supreme Court

(Supremo Tribunal de Justiça) which, on 7 May 1986, upheld the

appeal court's judgment. The letter of notification was sent to

the applicant on the following day. He was deemed to have received

it on the third day after its despatch (Article 1 para. 3 of

Legislative Decree No. 121/76).

II. The relevant domestic law

A. Criminal proceedings

51. In Portugal criminal proceedings are in principle brought

by the Public Prosecutor. According to Article 1 of Legislative

Decree No. 35007 of 13 October 1945 "criminal proceedings are the

responsibility of the authorities; they shall be brought by the

Public Prosecutor subject to the restrictions provided for in the

following Articles". These restrictions relate to the cases in

which the police or administrative authorities or other State

organs may bring criminal proceedings, but they apply in general

only for petty offences. Legislative Decree No. 605/75

of 3 November 1975 also states, in Article 1 thereof, that "except

as provided for by law, criminal proceedings shall be conducted by

the Public Prosecutor who shall open the preliminary inquiry or

communicate the file to the investigating judge, as the case may

be".

52. In certain cases, private persons may participate in the

criminal proceedings as assistentes. Article 4 of Legislative

Decree No. 35007 provides as follows:

"The following may participate in proceedings as assistentes:

1° Those persons without whose accusation or complaint the Public

Prosecutor cannot bring a prosecution;

2° The victims, namely those whose interests the criminal law

sought especially to protect by prohibiting the offence;

3° The husband in trials concerning offences of which his wife

has been the victim, unless she objects thereto;

4° The spouse, where there is no judicial separation or

separation of property, or the surviving spouse or any ascendant,

descendant, brother or sister, in cases where the victim is

deceased or incapable of managing his or her own affairs;

5° Any person in trials concerning embezzlement, bribery,

misappropriation of public funds or corruption.

Para. 1° - The assistentes perform the function of assistants to

the Public Prosecutor; their role in the proceedings is subordinate

to that of the Public Prosecutor, except in cases provided for by

the law.

Para. 2° - However, the assistentes are entitled in particular:

1° to make prosecution submissions independently of those filed by

the Public Prosecutor;

2° to intervene directly in the adversarial investigation

proceedings by adducing evidence and requesting the judge to take

the appropriate measures;

3° to appeal against the order committing the accused for trial,

the judgment or the order terminating the proceedings, even if the

Public Prosecutor has not done so.

Para. 3° - ... (repealed)

Para. 4° - In cases where the assistentes make prosecution

submissions relating to facts different from those which are the

subject of the prosecution submissions filed by the Public

Prosecutor, they may not appeal against the decision of the court

if it accepts the Public Prosecutor's submissions.

Para. 5° - The assistentes may intervene at any moment in the

proceedings up to five days before the trial hearing and shall

accept the state of the proceedings as they stand at that stage."

The preamble to the Decree states as follows:

"3. Criminal proceedings shall be brought by the Public Prosecutor

in his capacity as a State authority. The right to punish an

offender is a right that belongs exclusively to the State and

consequently private individuals may, in accordance with the law,

assist in bringing a prosecution, but have no personal right to

bring one ... ."

Article 70 of the Code of Criminal Procedure provides that the

preliminary investigation is to be secret. However, according to

paragraph 1 thereof the accused and the assistente may have access

to certain documents in the file provided that this does not impede

the discovery of the truth.

B. The victim's right to compensation

53. The Code of Criminal Procedure applicable at the material

time - new provisions came into force with effect from

1 January 1988 - contained several provisions on the victim's right

to compensation:

Article 29

"A claim for damages resulting from a punishable offence for which

the perpetrators are liable must be brought in the criminal

proceedings in process and may be brought in separate proceedings

in the civil courts only in the cases provided for by this Code".

Article 30

"Except in the cases in which criminal proceedings may be brought

only on the basis of a complaint or an accusation by a private

party, civil proceedings may be instituted separately in the civil

courts where the prosecution has not been brought by the Public

Prosecutor within six months of the complaint being laid or where

no action has been taken on the complaint for the same period,

where the proceedings have been discontinued or where the accused

has been acquitted.

Para. 1° In cases in which criminal proceedings may be brought

only on the basis of a complaint or an accusation by a private

party, the victim may bring civil proceedings, but if he does so,

the criminal proceedings shall lapse.

Para. 2° Where criminal proceedings have been instituted, civil

proceedings may be brought separately only where no action has been

taken in the criminal proceedings for six months or more through no

fault of the assistente where the proceedings have been

discontinued or where the accused has been acquitted."

Article 32

"The claim for damages may be lodged in criminal proceedings even

by a person who has not intervened as an assistente.

Para. 1° The Public Prosecutor shall seek damages on behalf of

the State, where appropriate, and on behalf of bodies serving

public interests or the legally incapacitated to whom compensation

is payable, if they are not represented by a lawyer in the

proceedings.

Para. 2° The statement of claim for damages shall be set out in

articles.

Para. 3° The evidence relating to the award of damages shall be

adduced within the time-limits applying for the criminal

proceedings ..."

Article 34

"If the accused is convicted, the court shall decide the amount to

be paid to the victims in respect of damages, even where no claim

has been lodged.

Para. 1° In cases where the law accords civil compensation to

other persons the amount shall be determined for each party.

Para. 2° The amount of compensation shall be determined at the

discretion of the court which shall take into account the

seriousness of the offence, the pecuniary and non-pecuniary damage

and the financial and social position of the injured party and of

the offender.

Para. 3° The persons entitled to compensation may request, before

judgment is pronounced at first instance, that the amounts of

compensation be decided in enforcement proceedings. In such

circumstances assessment and enforcement shall take place in the

civil courts, the criminal judgment serving as the basis for

enforcement.

Para. 4° If, in the cases provided for by law, the civil action

for damages is pending or has been judged in the civil courts,

compensation shall not be determined in the criminal proceedings."

Article 12 of Legislative Decree No. 605/75, cited above, states

moreover as follows:

"In cases where the accused is acquitted, the court shall order the

accused to pay damages in respect of proven unlawful acts or

liability based on risk, if established.

In such cases Article 34 of the Code of Criminal Procedure shall

apply, adapted as necessary."

54. In a "ruling" judgment (assento) of 28 January 1976 the

Supreme Court held that the civil courts had no competence to award

compensation if compensation had already been awarded in the

criminal proceedings (Diário da República, Series 1,

11 March 1976).

Although this decision concerned civil and criminal damages for

road traffic infringements, it set out the following general

considerations:

"Article 29 [of the Code of Criminal Procedure] establishes the

principle of the interrelation ... between the criminal and the

civil proceedings but with greater emphasis on the priority of the

criminal proceedings over the civil proceedings ...

...

... The formulation of prosecution submissions in the criminal

proceedings, which are intended to secure the conviction of the

accused, can therefore be seen as implying a request for

compensation to be awarded to the victim, because according to the

law such compensation is a consequence of a conviction.

...

... the amount of compensation is determined by the criminal

judgment regardless of whether the victim has filed a civil claim

... ."

PROCEEDINGS BEFORE THE COMMISSION

55. In his application (no. 11296/84) lodged with the

Commission on 16 November 1984 Mr Moreira de Azevedo complained of

the length of the proceedings relating to the prosecution brought

by the Public Prosecutor on 24 January 1977 in the Vila Nova de

Famalicão First-Instance Court; he considered their duration to be

contrary to Article 6 para. 1 (art. 6-1) of the Convention.

56. The Commission declared the application admissible on

15 April 1988. In its report of 10 July 1989 (Article 31) (art.

31), it expressed the opinion by eight votes to six that there had

been no violation of Article 6 para. 1 (art. 6-1).

The full text of its opinion and of the separate opinions contained

in the report is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: For practical reasons this annex will

appear only with the printed version of the judgment (volume 189 of

Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

THE GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT

57. In their memorial of 16 March 1990 the Government invited

the Court "to hold that Article 6 para. 1 (art. 6-1) of the

Convention does not apply to the proceedings in question".

AS TO THE LAW

58. According to Mr Moreira de Azevedo, the duration of the

criminal proceedings instituted against his assailant in the Vila

Nova de Famalicão First-Instance Court exceeded the reasonable time

referred to in Article 6 para. 1 (art. 6-1), according to which:

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

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

[a] ... tribunal ... ."

59. The Government contended primarily that the application was

inadmissible on the ground of a failure to exhaust domestic

remedies. In the alternative, they argued that Article 6 para. 1

(art. 6-1) was not applicable.

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

60. Before the Commission the Government had lodged a

preliminary objection divided into four limbs, but before the Court

they repeated, and set out the grounds for, only one of them.

Having regard to Rule 48 para. 1 of the Rules of the Court, the

other three do not call for a decision as the Court may not examine

them of its own motion (see, inter alia, the Duinhof and Duijf

judgment of 22 May 1984, Series A no. 79, p. 14, para. 30).

61. The submission re-iterated in the memorial of March 1990

and at the hearing of 23 May is to the effect that the applicant

ought to have brought civil proceedings, pursuant to Article 30 of

the Code of Criminal Procedure (see paragraph 53 above), separately

from the criminal proceedings.

Such proceedings would however have dealt with the substantive

issue in dispute before the Portuguese courts, Mr Moreira de

Azevedo's right to compensation, and not the only complaint relied

upon by him in Strasbourg, namely the failure to complete the

proceedings within a "reasonable time". Article 26 (art. 26) of

the Convention requires remedies to be exercised only in so far as

they relate to the violations complained of before the organs whose

task it is to ensure the observance of the Convention (see, among

many other authorities, the Ciulla judgment of 22 February 1989,

Series A no. 148, p. 15, para. 31). In addition, it would be

pointless to speculate as to whether such proceedings would have

led to a decision being given more rapidly, because in any event

they constituted a remedy too indirect to be taken into

consideration (see, mutatis mutandis, the Deweer judgment

of 27 February 1980, Series A no. 35, pp. 17 and 18, paras. 29 in

fine and 31).

The objection must therefore be dismissed.

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

62. Before making any ruling on the alleged violation of

Article 6 para. 1 (art. 6-1), the Court has to decide whether that

provision is applicable.

A. Applicability of Article 6 para. 1 (art. 6-1)

63. According to the Government, there is no sign in the

contested proceedings of any "contestation" (dispute) concerning

the applicant's "civil rights and obligations". Mr Moreira de

Azevedo had never claimed compensation for the damage sustained

inasmuch as the status of assistente was not equivalent to the

submission of such a claim. Only an express application lodged at

the same time as the indictment, or within the time-limit in which

the indictment could be drawn up, would have constituted objective

evidence of an intention to claim compensation.

64. Mr Moreira de Azevedo argued, on the other hand, and he

referred to the case-law of the Supreme Court (see paragraph 54

above), that a statement expressing a wish to intervene as

assistente in itself incorporated an implied claim for financial

reparation. In support of this view he cited his request that the

decision as to the amount of damages be deferred until the

subsequent enforcement proceedings (see paragraph 46 above).

65. The Commission took the view that the applicant had never

asserted his civil rights by filing a formal claim for compensation

in the criminal proceedings, as was required under Article 32 of

the Code of Criminal Procedure. It considered that the guarantees

secured under Article 6 para. 1 (art. 6-1) of the Convention did

not apply to situations in which, following a conviction, the court

awarded a sum of money, of its own motion; it therefore concluded

that Article 6 para. 1 (art. 6-1) was not applicable.

66. In the Court's opinion, the right to a fair trial holds so

prominent a place in a democratic society that there can be no

justification for interpreting Article 6 para. 1 (art. 6-1) of the

Convention restrictively.

Conformity with the spirit of the Convention requires that the word

"contestation" should not be construed too technically and that it

should be given a substantive rather than a formal meaning.

Besides, it has no counterpart in the English text of Article 6

para. 1 (art. 6-1) ("in the determination of his civil rights and

obligations"; cf. Article 49 (art. 49): "dispute" - see, mutatis

mutandis, the Le Compte, Van Leuven and De Meyere judgment

of 23 June 1981, Series A no. 43, p. 20, para. 45).

In so far as the French word "contestation" would appear to require

the existence of a dispute, if indeed it does so at all, the facts

of the case show that there was one.

In any event, the case concerned the determination of a right; the

result of the proceedings was decisive for that right (see the

above-mentioned judgment, p. 21, para. 46).

67. The impact on civil proceedings of the status of

assistente, which attached to the applicant during the criminal

proceedings, is the subject of controversy among Portuguese legal

writers. Clearly the applicant could have used the right made

available to him under Article 32 of the Code of Criminal Procedure

to submit a formal claim for damages, but the Court cannot

disregard the principles laid down by the Supreme Court in its

"ruling" judgment (assento) of 28 January 1976 (see paragraph 54

above). In the light of these principles it appears that to

intervene as an assistente is equivalent to filing a claim for

compensation in civil proceedings.

By acquiring this status, Mr Moreira de Azevedo demonstrated the

importance which he attached not only to the criminal conviction of

the accused but also to securing financial reparation for the

damage sustained. Moreover, his application that the decision as

to quantum be deferred until the subsequent enforcement proceedings

(see paragraph 46 above) confirms that he genuinely expected to be

paid damages.

68. In conclusion, Article 6 para. 1 (art. 6-1) applies to this

case.

B. Compliance with Article 6 para. 1 (art. 6-1)

1. Period to be taken into consideration

69. According to the applicant, the proceedings lasted nine

years. The Government maintained that they had begun on

24 January 1977 with the decision of the investigating judge

ordering the provisional release of Mr Gonçalves de Sousa and were

concluded on 7 May 1986 when the Supreme Court adopted its

judgment.

70. The Court notes that the incident in question took place on

23 January 1977 and that the accused was arrested and interviewed

on the same date. However, the period to be considered did not

begin to run at that date, but on 9 November 1978, when the

Convention entered into force with regard to Portugal (see the

Neves e Silva judgment of 27 April 1989, Series A no. 153, p. 15,

para. 40). In order to determine the reasonableness of the time

which elapsed after that date it is, however, necessary to take

into account the stage which the proceedings had reached at that

point.

The relevant period ended on 11 May 1986, the third day following

the despatch of the letter of notification to the applicant

(Article 1 para. 3 of Legislative Decree no. 121/76 of

11 February 1976).

2. Reasonableness of the length of the proceedings

71. The reasonableness of the length of proceedings must be

assessed in the light of the particular circumstances of the case

and having regard to the criteria laid down in the Court's

case-law, in particular the complexity of the case, the conduct of

the applicant and that of the relevant authorities (see, inter

alia, the H. v. France judgment of 24 October 1989, Series A

no. 162, p. 21, para. 50).

72. It is common ground between the participants in the

proceedings before the Court that the dispute was not a complex

one; however, their views differ with regard to the conduct of the

applicant and that of the judicial authorities.

According to the Government, Mr Moreira de Azevedo did not take the

steps necessary to expedite the proceedings and displayed a

passivity which reflected acceptance of their length. This the

applicant disputed.

The Court observes that the investigation conducted between

23 January 1977 and 5 July 1984 was secret and that the applicant

did not have free access to the file (see paragraph 52 above).

In any event the applicant was under no duty to take the steps

referred to by the Government; moreover, they would not have

shortened the proceedings (see, mutatis mutandis, the Guincho

judgment of 10 July 1984, Series A no. 81, p. 15, para. 34).

73. It remains to examine the conduct of the relevant

Portuguese courts.

The applicant ascribed the length of the proceedings to the

defective functioning of the system of justice. In his view, the

respondent State was alone responsible for this situation and could

not hide behind the delays of the hospital authorities.

For their part, the Government stressed that no major problems

arose in the course of the preliminary inquiry, apart from the time

taken for the medical examinations. Although they conceded that

there were certain delays in the investigation and that it made no

progress whatsoever from 26 May 1980 until 5 July 1982, they argued

that the investigation authorities were at the time experiencing a

difficult period of re-organisation, but that prompt and adequate

measures had been decided in 1982 (amendment of the Constitution)

and 1987 (adoption of a new Code of Criminal Procedure). Finally,

they maintained that the responsibility for the lack of efficiency

of the departments of the Oporto medical faculty could not be

attributed to the judicial authorities.

In the opinion of the Commission's Delegate, there could be no

doubt that the "reasonable time" had been exceeded. The

proceedings had scarcely progressed from 26 May 1980 to

5 July 1982, and the time taken to complete the medical

examinations of the applicant was excessive.

The Court shares this view and notes that the State is responsible

for all its authorities and not merely its judicial organs (see,

among other authorities, the Martins Moreira judgment of

26 October 1988, Series A no. 143, p. 21, para. 60).

74. By requiring that cases be heard "within a reasonable

time", the Convention stresses the importance of administering

justice without delays which might jeopardise its effectiveness and

credibility (see, inter alia, the H. v. France judgment, cited

above, pp. 22-23, para. 58).

The Court is not unaware of the difficulties which sometimes delay

the hearing of cases by national courts and which are due to a

variety of factors. It is mindful of the reforms carried out by

the Portuguese State as regards the organisation of the

investigation authorities. Nevertheless it finds that the

Government have failed to show what practical and effective

measures Portuguese law provided in the present case to accelerate

the progress of the criminal proceedings.

75. In conclusion the "reasonable time" was exceeded and there

was accordingly a violation of Article 6 para. 1 (art. 6-1).

III. APPLICATION OF ARTICLE 50 (art. 50)

76. According to Article 50 (art. 50) of the Convention,

"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."

Mr Moreira de Azevedo sought both the award of compensation and the

reimbursement of costs and expenses.

77. The applicant claimed 8,000,000 escudos in respect of

pecuniary damage and 2,000,000 for non-pecuniary damage. He had,

he alleged, been prevented from pursuing his occupation and no

longer received his salary as a bus driver, which had been

60,000 escudos. Furthermore, the slowness of the Portuguese courts

meant that he had been unable to obtain compensation from

Mr Gonçalves de Sousa. He was physically and mentally destroyed

and his incapacity to work was at least 75%. He suffered from

permanent after-effects due to the loss of a part of his skull and

to "subjective damage to the encephalic mass".

For his part, the Commission's Delegate took the view that if the

Court found a breach of Article 6 para. 1 (art. 6-1), the applicant

would be entitled to compensation for the non-pecuniary damage

flowing from the protracted uncertainty and anxiety concerning the

outcome of the proceedings. He expressed no view on the pecuniary

damage.

78. While taking into account the fact that he had received

legal aid before the Convention organs, Mr Moreira de Azevedo

claimed the reimbursement of costs and expenses referable to the

European proceedings. He assessed the lawyers' fees at

500,000 escudos and travel and subsistence expenses at

72,000 escudos.

The Commission's Delegate considered that, if a violation were

found, the applicant would be entitled to the reimbursement of

expenses actually and necessarily incurred by him to prevent the

breach, or have it redressed, both in the domestic legal system and

at the European level. However, he did not give any figures as to

quantum.

79. The Government have not taken any stand on the matter and

the Court does not yet have at its disposal certain information

which it requires to make an assessment, and in particular

appropriate supporting documents. The question is thus not ready

for decision. Accordingly, it should be reserved and the

subsequent procedure fixed, taking into account the possibility of

an agreement between the respondent State and the applicant

(Rule 54 paras. 1 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government's preliminary objection;

2. Holds that Article 6 para. 1 (art. 6-1) applied to the

present case and that it was violated;

3. Holds that the question of the application of Article 50

(art. 50) is not ready for decision;

Accordingly

(a) reserves it in whole;

(b) invites the Government and the applicant to submit to it in

writing within the next three months their observations on the

question and in particular to communicate to it any agreement which

they may reach;

(c) reserves the subsequent procedure and delegates to the

President of the Court power to fix the same if need be.

Done in English and in French and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 23 October 1990.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar