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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> LOBO MACHADO v. PORTUGAL - 15764/89 [1996] ECHR 6 (20 February 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/6.html Cite as: [1996] ECHR 6, (1996) 23 EHRR 79, [1996] 23 EHRR 79, (1997) 23 EHRR 79, 23 EHRR 79

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In the case of Lobo Machado v. Portugal (1),

The European Court of Human Rights, sitting, in

accordance with Rule 51 of Rules of Court A (2), as a Grand

Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr R. Macdonald,

Mr A. Spielmann,

Mr S.K. Martens,

Mrs E. Palm,

Mr I. Foighel,

Mr R. Pekkanen,

Mr A.N. Loizou,

Mr J.M. Morenilla,

Mr F. Bigi,

Sir John Freeland,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

Mr J. Makarczyk,

Mr D. Gotchev,

Mr K. Jungwiert,

Mr P. Kuris,

Mr U. Lohmus,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 1 September 1995 and

22 January 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 21/1994/468/549. 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.

2. Rules A apply to all cases referred to the Court before the

entry into force of Protocol No. 9 (P9) (1 October 1994) and

thereafter only to cases concerning States not bound by that

Protocol (P9). They correspond to the Rules that came into force

on 1 January 1983, as amended several times subsequently.

_______________

PROCEDURE

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

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

Government of the Portuguese Republic ("the Government") on

7 July and 5 September 1994, within the three-month period laid

down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47)

of the Convention for the Protection of Human Rights and

Fundamental Freedoms ("the Convention"). It originated in an

application (no. 15764/89) against Portugal lodged with the

Commission under Article 25 (art. 25) by a Portuguese national,

Mr Pedro Lobo Machado, on 2 November 1989.

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 Government's application referred to Article 48

(art. 48). The object of the request and of the application 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 (art. 6) of the Convention and Article 1 of

Protocol No. 1 (P1-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated

that he wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr M.A. Lopes Rocha, 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 18 July 1994,

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

names of the other seven members, namely Mr N. Valticos,

Mr S.K. Martens, Mrs E. Palm, Mr I. Foighel, Mr F. Bigi,

Mr J. Makarczyk and Mr K. Jungwiert (Article 43 in fine of the

Convention and Rule 21 para. 4) (art. 43). Subsequently

Mr A. Spielmann, substitute judge, replaced Mr Valticos, who was

unable to take part in the further consideration of the case

(Rules 22 para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 5),

Mr Ryssdal, acting through the Registrar, consulted the Agent of

the Government, the applicant's lawyer and the Delegate of the

Commission on the organisation of the proceedings (Rules 37

para. 1 and 38). Pursuant to the order made in consequence, the

Registrar received the applicant's memorial on 18 November 1994

and the Government's memorial on 21 November. On 1 December the

Secretary to the Commission informed the Registrar that the

Delegate would submit his observations at the hearing.

5. On 2 February 1995 the President decided in the interests

of the proper administration of justice that the instant case and

the case of Vermeulen v. Belgium (58/1994/505/587) should be

heard on the same day. Consequently, after consulting the

Chamber, he decided to adjourn the hearing in the instant case

from 20 March 1995, the date originally scheduled, to 30 August.

6. On 22 March 1995, under Rule 37 para. 2, the President

decided to grant a request from the Belgian Government to submit

written observations on certain aspects of the case. In a letter

received at the registry on 18 April 1995 counsel for the

applicant made comments on questions concerning the scope of the

aforementioned Government's intervention as an amicus curiae.

On 24 May 1995 the Registrar received the observations.

7. Likewise on 24 May 1995 the Chamber relinquished

jurisdiction in favour of a Grand Chamber (Rule 51). In

accordance with Rule 51 para. 2 (a) and (b), the President and

the Vice-President (Mr Ryssdal and Mr R. Bernhardt), together

with the other members of the original Chamber, became members

of the Grand Chamber. On 8 June 1995, in the presence of the

Registrar, the President drew by lot the names of the additional

judges, namely Mr R. Macdonald, Mr R. Pekkanen, Mr A.N. Loizou,

Mr J.M. Morenilla, Sir John Freeland, Mr L. Wildhaber, Mr D.

Gotchev, Mr P. Kuris and Mr U. Lohmus.

8. In accordance with the decision of the President, who had

given the applicant's lawyer leave to address the Court in

Portuguese (Rule 27 para. 3), the hearing took place in public

in the Human Rights Building, Strasbourg, on 30 August 1995. The

Court had held a preparatory meeting beforehand.

9. There appeared before the Court:

(a) for the Government

Mr A. Henriques Gaspar, Deputy Attorney-General

of the Republic, Agent,

Mr O. Castelo Paulo, former President of the Employment

Division of the Supreme Court, Adviser;

(b) for the Commission

Mr H. Danelius, Delegate;

(c) for the applicant

Mr J. Pires de Lima, advogado, Counsel,

Mr J.M. Lebre de Freitas, Professor of Law

at the University of Lisbon, advogado,

Mr M. Nobre de Gusmão, advogado, Advisers.

The Court heard addresses by Mr Danelius, Mr Pires de

Lima, Mr Lebre de Freitas, Mr Henriques Gaspar and Mr Castelo

Paulo.

AS TO THE FACTS

I. Circumstances of the case

10. Mr Pedro Lobo Machado is a Portuguese national who lives

in Lisbon. In 1955 he joined the Sacor company as an engineer.

Following its nationalisation in 1975, Sacor was absorbed into

Petrogal-Petróleos de Portugal, EP ("Petrogal"), a State-owned

concern. On 4 April 1989 Petrogal became a public limited

company, in which the State is still the majority shareholder.

In the meantime, on 1 January 1980, the applicant had retired.

11. On 5 February 1986 Mr Lobo Machado brought proceedings

against Petrogal in the Lisbon industrial tribunal; the company

was represented by a lawyer appointed by the chairman of its

board of directors. Mr Lobo Machado sought recognition of the

occupational grade of "director-general" instead of that of

"director" which had been assigned to him by his employer. As

that classification had an effect on the amount of his retirement

pension, he also sought payment of the sums that, under the

collective labour agreement (acordo colectivo de trabalho),

should have been paid him since 1980.

12. The Lisbon industrial tribunal dismissed his claims in a

judgment of 7 October 1987. That decision was upheld by the

Lisbon Court of Appeal in a judgment of 1 June 1988.

13. The applicant appealed to the Supreme Court (Supremo

Tribunal de Justiça).

14. After the parties had exchanged pleadings, the case file

was sent to the representative of the Attorney-General's

department at the Supreme Court, a Deputy Attorney-General, on

20 February 1989. On 28 February 1989 that representative

delivered an opinion in which he recommended that the appeal

should be dismissed, as follows:

"1. Seen.

2. The appellant reiterates the arguments already

presented to the Court of Appeal and seeks to have that

court's judgment and the one of the court of first

instance set aside and to have his action allowed. Those

arguments, however, were duly considered in the judgment

appealed against, which is sufficient in itself as

regards the reasons given for it. No further

consideration is therefore necessary.

3. I am consequently of the opinion that the appeal must

be dismissed."

15. On 19 May 1989 the Supreme Court, sitting in private,

considered the appeal. Three judges, a registrar and the member

of the Attorney-General's department were present at the

deliberations. The parties had not been asked to attend. At the

end of the deliberations the court adopted a judgment in which

it dismissed the appeal and this was served on the applicant on

22 May 1989.

II. Relevant domestic law

A. The Constitution

16. The independence and status of the Attorney-General's

department are similar to those of the judiciary. In Article 221

paras. 1 and 2 of the Constitution its functions are laid down

as follows:

"1. The duties of the Attorney-General's department are

to represent the State, to act as prosecuting authority

and to uphold the democratic legal order and the

interests determined by law.

2. The Attorney-General's department shall have its own

status and shall be autonomous, in accordance with law."

B. The Institutional Law governing the Attorney-General's

department

17. Law no. 47/86 of 15 October 1986 defines the scope of the

powers of the Attorney-General's department and lays down the

manner in which it is to intervene - as plaintiff or defendant

or else in an "associated" (acessória) capacity - in judicial

proceedings. The following provisions are relevant to the

instant case:

Section 1

"By law, the Attorney-General's department is the body

responsible for representing the State, acting as

prosecuting authority and upholding the democratic legal

order and the interests assigned to it by law."

Section 3 (1)

"It shall be the duty of the Attorney-General's

department in particular to:

(a) represent the State ...;

(b) act as prosecuting authority;

(c) represent workers and their families in defence of

their social rights;

(d) uphold the independence of the courts, within the

limits of its responsibilities, and ensure that the

judicial function is discharged in accordance with the

Constitution and statute law;

(e) further the execution of court decisions in respect

of which it is so empowered;

(f) direct criminal investigations, even where they are

carried out by other bodies;

(g) promote and cooperate in campaigns for the prevention

of crime;

(h) monitor the constitutionality of legislation;

(i) intervene in bankruptcy and insolvency proceedings

and in any other proceedings of public interest;

(j) act in an advisory capacity, as provided in this Law;

(l) supervise police proceedings;

(m) lodge appeals against decisions resulting from

collusion between the parties with the intention of

evading the law or which have been given in breach of an

express statutory provision; and

(n) discharge all the other functions assigned to it by

statute."

Section 5

"1. The Attorney-General's department shall intervene in

proceedings as plaintiff or defendant:

(a) where it represents the State;

...

(d) where it represents workers and their families in

defence of their social rights;

...

4. The Attorney-General's department shall intervene in

proceedings in an `associated' capacity:

(a) where none of the cases provided for in

subsection (1) applies and where the parties concerned in

the case are autonomous regions, local authorities, other

public entities, charities and other institutions

promoting the public interest, persons lacking legal

capacity or missing persons; and

(b) in all other cases provided for by law."

Section 6

"1. Where the Attorney-General's department intervenes in

an `associated' capacity, it shall watch over the

interests entrusted to it by taking all necessary

measures.

2. The intervention shall be made in the manner laid

down in procedural law."

Section 11 (2)

"[The Attorney-General's department] shall be represented

[in the supreme courts] by Deputy Attorneys-General ..."

Section 59

"The Minister of Justice may:

(a) give specific instructions to the Attorney-General

concerning civil cases in which the State has an

interest;

(b) authorise the Attorney-General's department ... to

admit the other side's case, conclude settlements or

discontinue proceedings in civil cases to which the State

is a party;

..."

C. The Code of Civil Procedure

18. The relevant provisions of the Code of Civil Procedure,

which are also applicable to cases falling within the

jurisdiction of the industrial tribunals, are the following:

Article 20

"1. The State shall be represented by

the Attorney-General's department.

2. If the case concerns State property or State rights

but the property is managed or the rights exercised by

autonomous bodies, the latter may instruct counsel, who

shall act conjointly with the Attorney-General's

department in the proceedings. In the event of

disagreement between the Attorney-General's department

and counsel, the view of the Attorney-General's

department shall prevail."

Article 709

"1. After inspecting the case file, each judge shall

append his signature and the date, together with any

comments. At the end of this process, the registry shall

enter the case in the court's list.

2. On the day on which the court sits to adopt its

judgment, the reporting judge shall read out the draft

judgment, after which each of the other judges shall vote

in the order in which they have inspected the case file.

Where possible, a photocopy or a manuscript or typescript

copy of the draft judgment shall be distributed to the

presiding judge and the other judges of the court at the

beginning of the sitting.

3. ..."

Article 752 para. 1

"Where the Attorney-General's department must intervene

[in proceedings], the case file shall be sent to it [for

observations] for a period of seven days, after which the

file ... shall be sent to the reporting judge and the

other non-presiding judges for the purposes of a final

decision; the reporting judge may keep the file for

fourteen days and the other judges for seven days."

19. Under the Constitution and the Institutional Law

governing the Attorney-General's department, the latter must

intervene in all proceedings in which the public interest

(interesse público) is at stake.

In labour-law cases the practice of the Employment

Division of the Supreme Court is for the representative of

the Attorney-General's department at that court (a

Deputy Attorney-General) to be given the file so that he can

express an opinion on the merits of the appeal. As a general

rule, that representative also takes part in the sitting held to

consider the appeal.

D. The Code of Labour Procedure

20. The Government cited the following provisions of the Code

of Labour Procedure:

Article 8

"The representatives of the Attorney-General's department

must automatically represent:

(a) workers and their families;

(b) ..."

Article 10

"Where a legal representative is appointed, the automatic

representation by the Attorney-General's department shall

cease, without prejudice to that department's

intervention in an `associated' capacity."

PROCEEDINGS BEFORE THE COMMISSION

21. Mr Lobo Machado applied to the Commission on

2 November 1989. Relying on Article 6 para. 1 (art. 6-1) of the

Convention, he complained, firstly, that there had been no fresh

assessment by the Court of Appeal of the evidence relating to

facts held to have been established by the court of first

instance and no public hearing in either the Court of Appeal or

the Supreme Court; he further complained of the role assigned to

the Attorney-General's department in the proceedings before the

Supreme Court, which he said had infringed his right to a fair

trial by an independent and impartial tribunal and had offended

the principle of equality of arms. He also alleged a breach

of Article 1 of Protocol No. 1 (P1-1) on account of the adverse

financial consequences of the failure of his action.

22. On 29 November 1993 the Commission declared admissible

the complaints relating to the participation of

the Attorney-General's department in the proceedings before the

Supreme Court and the infringement of the applicant's right to

the peaceful enjoyment of his possessions. It declared the

remainder of the application (no. 15764/89) inadmissible. In its

report of 19 May 1994 (Article 31) (art. 31), it expressed the

opinion by fourteen votes to nine that there had been a breach

of Article 6 para. 1 (art. 6-1) of the Convention and by

twenty-two votes to one that no separate issue arose

under Article 1 of Protocol No. 1 (P1-1). The full text of the

Commission's opinion and of the three separate opinions contained

in the report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the

printed version of the judgment (in Reports of Judgments and

Decisions - 1996), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT

23. In their memorial the Government asked the Court "to hold

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

of the Convention".

AS TO THE LAW

I. ALLEGED VIOLATION OF Article 6 Para. 1 (art. 6-1) OF THE

CONVENTION

24. Mr Lobo Machado alleged a breach of 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 fair ... hearing ... by an

independent and impartial tribunal ..."

He complained, firstly, that he had not been able, before

the Supreme Court had given judgment, to obtain a copy of the

Attorney-General's department's written opinion or, therefore,

to reply to it; and, secondly, that the Attorney-General's

department had been represented at the Supreme Court's

deliberations, held in private, although it had previously

endorsed the arguments of Petrogal. Its presence at the

deliberations was thus, he submitted, contrary to the principle

of equality of arms and called the court's independence in

question. Furthermore, as he had brought his action against a

State-owned concern, he was entitled to doubt the impartiality

of the Attorney-General's department as a representative of the

State in private disputes of a pecuniary nature.

There was nothing, he continued, to justify the

Deputy Attorney-General's being present at the deliberations.

His role had not been to advise the court or to ensure the

consistency of its case-law. Nor, in the instant case, was his

presence explained by the need to uphold the public interest,

since he had taken the side of the employer.

The duties of the Portuguese Attorney-General's

department were such that in the instant case its representative

could have received instructions from the Minister of Justice

regarding his final submissions and his role when the appeal was

being considered by the Supreme Court. As a consequence, it

could not conceivably be said, as regards Portugal, that an

infringement of the principle of fairness in civil proceedings,

by reason of the non-adversarial intervention of

the Attorney-General's department, was less serious than a

comparable infringement in criminal proceedings.

25. The Commission shared this view for the most part and

considered that the principles laid down in the Borgers

v. Belgium judgment of 30 October 1991 (Series A no. 214-B)

applied mutatis mutandis in civil proceedings. At the hearing

its Delegate said that the breach arose from the combination of

the fact that Mr Lobo Machado had been unable to reply to the

written observations of the Attorney-General's department and the

fact that a member of that department had been present at the

deliberations.

26. The Government pointed out that the parties - the

applicant and Petrogal - had exercised their procedural rights

on an equal footing through their counsel. In such proceedings

the Deputy Attorney-General, one of the members of

the Attorney-General's department in the highest grade, could not

be equated with a party. Given the special features of the

system of intervention by the Attorney-General's department at

the Supreme Court in employment cases, the considerations set out

in the Borgers judgment were not applicable in the instant case.

The member of the Attorney-General's department in its capacity

as an institution of the judicial system had no other duty than

to assist the court by giving a completely independent, objective

and impartial written opinion super partes on the legal issues

raised. In this way he contributed to ensuring good

administration of justice. The objective function of amicus

curiae discharged by the Deputy Attorney-General as a guarantor

of the consistency of the Supreme Court's case-law and protector

of the public interest in employment cases was known to the

public and especially to lawyers. It could not be said that

because he drew up an opinion based strictly on the law, the

Deputy Attorney-General became "objectively speaking" an "ally"

or an "opponent" (see the Borgers judgment previously cited,

p. 32, para. 26). The fact that one of the parties was a

State-owned concern that had subsequently become a public limited

company in which the State was the majority shareholder had no

bearing on the assessment of whether the principle of a fair

trial had been complied with. Petrogal had its own organs. In

cases such as the instant one, section 59 of the Institutional

Law governing the Attorney-General's department (see paragraph 17

above), which had been cited by the applicant, did not authorise

the Minister of Justice to give instructions concerning the task

of the Attorney-General's department.

In the instant case, that department had confined itself

to giving a brief written opinion and had had no kind of say,

whether advisory or any other, in the process whereby the court

reached its decision when sitting in private (contrast the

Borgers judgment previously cited).

27. The Belgian Government submitted (see paragraph 6 above)

that the fundamental differences between criminal and civil

proceedings before a supreme court dictated that the Borgers

precedent (see the judgment previously cited) should not be

followed where civil proceedings were concerned. At all events,

the special features of each case and of the relevant national

law had to be taken into consideration so as to avoid uniformly

condemning, as being contrary to Article 6 para. 1 (art. 6-1),

an institution which both in Belgium and in Portugal had proved

beneficial.

28. The Court notes, firstly, that the dispute in question

related to social rights and was between two clearly defined

parties: the applicant, as plaintiff, and Petrogal as defendant.

In that context the duty of the Attorney-General's department at

the Supreme Court is mainly to assist the court and to help

ensure that its case-law is consistent. Given that the rights

were social in nature, the department's intervention in the

proceedings was more particularly justified for the purposes of

upholding the public interest.

It must be observed, secondly, that Portuguese

legislation gives no indication as to how the representative of

the Attorney-General's department attached to the Employment

Division of the Supreme Court is to perform his role when that

division sits in private (contrast the Borgers judgment

previously cited, p. 28, para. 17, and p. 32, para. 28).

29. As in its judgment in the Borgers case (p. 32, para. 26),

the Court considers, however, that great importance must be

attached to the part actually played in the proceedings by the

member of the Attorney-General's department, and more

particularly to the content and effects of his observations.

These contain an opinion which derives its authority from that

of the Attorney-General's department itself. Although it is

objective and reasoned in law, the opinion is nevertheless

intended to advise and accordingly influence the Supreme Court.

In this connection, the Government emphasised the importance of

the department's contribution to ensuring the consistency of the

court's case-law and, more particularly in the instant case,

upholding the public interest.

30. In its judgment of 17 January 1970 in the Delcourt

v. Belgium case the Court noted in its reasons for holding

that Article 6 para. 1 (art. 6-1) was applicable that "the

judgment of the Court of Cassation ... may rebound in different

degrees on the position of the person concerned" (Series A

no. 11, pp. 13-14, para. 25). It has reiterated that idea on

several occasions (see, mutatis mutandis, the following

judgments: Pakelli v. Germany, 25 April 1983, Series A no. 64,

p. 17, para. 36; Pham Hoang v. France, 25 September 1992,

Series A no. 243, p. 23, para. 40; and Ruiz-Mateos v. Spain,

23 June 1993, Series A no. 262, p. 25, para. 63). The same

applies in the instant case, since the outcome of the appeal

could have affected the amount of Mr Lobo Machado's retirement

pension.

31. Regard being had, therefore, to what was at stake for the

applicant in the proceedings in the Supreme Court and to the

nature of the Deputy Attorney-General's opinion, in which it was

advocated that the appeal should be dismissed (see paragraph 14

above), the fact that it was impossible for Mr Lobo Machado to

obtain a copy of it and reply to it before judgment was given

infringed his right to adversarial proceedings. That right means

in principle the opportunity for the parties to a criminal or

civil trial to have knowledge of and comment on all evidence

adduced or observations filed, even by an independent member of

the national legal service, with a view to influencing the

court's decision (see, among other authorities and mutatis

mutandis, the following judgments: Ruiz-Mateos, previously cited,

p. 25, para. 63; McMichael v. the United Kingdom,

24 February 1995, Series A no. 307-B, pp. 53-54, para. 80; and

Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 16,

para. 42).

The Court finds that this fact in itself amounts to a

breach of Article 6 para. 1 (art. 6-1).

32. The breach in question was aggravated by the presence of

the Deputy Attorney-General at the Supreme Court's private

sitting. Even if he had no kind of say, whether advisory or any

other (see paragraphs 26 and 28 above), it afforded him, if only

to outward appearances, an additional opportunity to bolster his

opinion in private, without fear of contradiction (see the

Borgers judgment previously cited, p. 32, para. 28).

The fact that his presence gave the Attorney-General's

department the chance to contribute to maintaining the

consistency of the case-law cannot alter that finding, since

having a member present is not the only means of furthering that

aim, as is shown by the practice of most other member States of

the Council of Europe.

There has therefore been a breach of Article 6 para. 1

(art. 6-1) in this respect also.

33. These conclusions make it unnecessary for the Court to

rule on the complaint that the Supreme Court was neither

impartial nor independent.

II. ALLEGED VIOLATION OF Article 1 OF Protocol No. 1 (P1-1)

34. Before the Commission the applicant alleged a violation

of Article 1 of Protocol No. 1 (P1-1), but he did not reiterate

that complaint before the Court.

35. The Court does not consider that it must raise the issue

of its own motion.

III. APPLICATION OF Article 50 (art. 50) OF THE CONVENTION

36. Article 50 (art. 50) of the Convention provides:

"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."

A. Damage

37. Mr Lobo Machado said that quite apart from the effects of

the outcome of the proceedings on his professional life, the

doubts about the judicial system that had been raised by the

instant case had impaired for ever his confidence in democratic

institutions. The non-pecuniary damage sustained could not be

less than 3,500,000 escudos (PTE).

38. The Government submitted that there was no causal link

between the breach and the alleged damage.

39. The Delegate of the Commission did not express an

opinion.

40. The Court considers that the finding of a breach

of Article 6 (art. 6) constitutes in itself sufficient just

satisfaction under this head.

B. Costs and expenses

41. The applicant also sought PTE 1,500,000 in respect of

costs and expenses incurred for his representation before the

Convention institutions.

42. No view was expressed by either the Government or the

Delegate of the Commission.

43. The Court allows Mr Lobo Machado's claim and therefore

awards him the sum sought, from which 21,724 French francs paid

by the Council of Europe by way of legal aid fall to be deducted.

C. Default interest

According to the information available to the Court, the

statutory rate of interest applicable in Portugal at the date of

adoption of the present judgment is 10% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

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

(art. 6-1) of the Convention;

2. Holds that it is unnecessary to consider the case under

Article 1 of Protocol No. 1 (P1-1);

3. Holds that this judgment constitutes in itself sufficient

just satisfaction as to the alleged damage;

4. Holds

(a) that the respondent State is to pay the applicant,

within three months, 1,500,000 (one million five hundred

thousand) escudos, less 21,724 (twenty-one thousand seven

hundred and twenty-four) French francs, to be converted

into escudos at the rate of exchange applicable at the

date of delivery of this judgment, for costs and

expenses;

(b) that simple interest at an annual rate of 10% shall

be payable on these sums from the expiry of the

above-mentioned three months until settlement;

5. Dismisses the remainder of the claim for just

satisfaction.

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

hearing in the Human Rights Building, Strasbourg, on

20 February 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of Rules of Court A, the

concurring opinion of Mr Lopes Rocha is annexed to this judgment.

Initialled: R. R.

Initialled: H. P.

CONCURRING OPINION OF JUDGE LOPES ROCHA

(Translation)

I concur in the finding that there has been a breach of

Article 6 para. 1 (art. 6-1) of the Convention, but I cannot

agree with all of the reasons set out in paragraphs 31 and 32 of

the judgment.

As is clear from paragraph 14, the opinion of the

Deputy Attorney-General, which the plaintiff was unaware of, did

not adduce any new argument in support of dismissing the appeal.

It did no more than point out that the plaintiff's arguments had

already been considered in the Court of Appeal's judgment, which

was sufficient in itself as regards the reasons given for it, and

that any further consideration was therefore unnecessary.

The fact, on its own, that it was impossible for the

applicant to have knowledge of the content of the

Deputy Attorney-General's opinion before judgment was delivered

and to reply to it does not suffice for it to be found that there

has been a breach of Article 6 para. 1 (art. 6-1) as is held in

paragraph 31.

The finding of a breach should, rather, be based on all

the circumstances of the case.

What must be assessed from the point of view of a breach

of the right to a fair hearing is the fact that the member of the

Attorney-General's department attended the Supreme Court's

private sitting without the plaintiff's being able to be present,

which afforded him an additional opportunity to bolster his

opinion in private without fear of contradiction.

Admittedly the member of the Attorney-General's

department was not a "party" in the technical meaning of the term

in procedural law. But his intervention in support of the Court

of Appeal's decision, combined with the fact of his presence at

the Supreme Court's sitting, even if he had no kind of say,

whether advisory or any other, must amount to a procedural

disadvantage for the plaintiff. The latter found himself in the

position of having to argue simultaneously against the opposing

side and a public entity, both united in denying the right that

he was seeking to claim in the Supreme Court; that situation

reflected a manifest inequality and thus infringed the right to

a fair hearing, seeing that in law fairness is a concept which

takes account of the spirit of the law rather than the letter of

it. Furthermore, the concepts of fairness and equality are

equipollent.

In short, the situation of inequality was incompatible

with the requirements of fair proceedings within the meaning

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