CEDH · CASELAW;CLIN;ENG — 29 octobre 2015

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Portugal - 73798/13 Judgment 29.10.2015 [Section I] Article 13 Effective remedy Effectiveness of remedy in length- of-proceedings cases insufficiently established when application was lodged: violation Facts – In June 2003 the applicant brought proceedings in the administrative court against the mayor and other authorities, seeking to have his contract of employment recognised after it had been terminated. The case was referred to the Administrative and Tax Court. Between 2006 and 2008 the applicant made several enquiries as to the progress of the proceedings. In July 2012 he wrote to the court complaining of the delay in examining his case. The court gave judgment in the applicant’s favour in March 2013. The mayor appealed. The applicant asked the court to discontinue the appeal proceedings, on the grounds that the mayor had not filed pleadings within the time allowed. The court discontinued the proceedings in May 2013. Law – Article 13: The applicant’s complaint concerning the length of civil proceedings in the administrative court appeared on the face of it to be “arguable”, since the proceedings had lasted more than nine years. He had therefore been entitled to an effective remedy in that regard. (a)     Compatibility of an action to establish non-contractual liability with general principles – Having regard to its own observations and the considerations set out in the Martins Castro and Alves Correia de Castro v.   Portugal judgment, the Court considered that the domestic courts’ practice had evolved significantly over the past few years as regards the assessment of actions to establish non-contractual liability under section   12 of Law no.   67/2007 of 31   December 2007. The change had become consolidated within the domestic courts’ case-law following the Supreme Administrative Court’s judgment of 27   November 2013, to the extent that the remedy had acquired the requisite degree of legal certainty to enable and oblige applicants to use it for the purposes of Article 35 §   1 of the Convention. The Court thus concluded that from 27   November 2013, an action to establish non-contractual liability under section   12 of the above-mentioned Law constituted an effective remedy in respect of an alleged violation of the right to a hearing within a “reasonable time” within the meaning of Article 6 §   1 of the Convention. Nevertheless, as a secondary consideration, to ensure that the length of proceedings involving actions to establish non-contractual liability did not compromise the progress noted and the remedy’s effectiveness as confirmed in the present case, the Court recommended that the respondent State remain attentive and, where appropriate, refrain from appealing against judgments in which a breach of the reasonable-time requirement had been found and compensation awarded to the claimants. (b)     Requirement to make use of this remedy in the present case – The Court found it reasonable to presume that the Supreme Administrative Court’s judgment of 27   November 2013 had gained publicity at domestic level, particularly in legal circles, six months after its delivery – that is, from 27   May 2014 – given that it could have been consulted via the database of the Supreme Administrative Court’s case-law available on its website. Accordingly, the public must have been aware of the judgment by 27   May 2014. This was the date from which applicants had to be required to have made use of the remedy in question for the purposes of Article 35 §   1 of the Convention. That conclusion applied both to completed proceedings and to proceedings that were still pending at domestic level, since domestic case-law did not make any distinction between pending and completed proceedings. The application in the present case had been lodged on 25   November 2013, by which date the remedy had not acquired the requisite degree of certainty to enable and oblige applicants to use it for the purposes of Article 35 §   1 of the Convention.* Moreover, it would now be impossible for the applicant to bring an action of this kind because there was a three-year limitation period, which started to run from the date on which the person concerned had become aware of the delay in the proceedings in accordance with domestic case-law. Accordingly, the applicant could not be criticised for failing to avail himself of an action to establish non-contractual liability under section   12 of Law no.   67/2007 of 31   December 2007. The Court therefore dismissed the Government’s preliminary objection of failure to exhaust domestic remedies. Conclusion : violation (unanimously). The Court also found a violation of Article 6 §   1 on account of the unreasonable length of the proceedings, which had lasted 9   years, 11   months and 20   days. Article 41: EUR 11,830 for non-pecuniary damage; claim for pecuniary damage rejected. (See Martins Castro and Alves Correia de Castro v.   Portugal , 33729/06, 10   June 2008, Information Note   109 ) *     See also Depauw v. Belgium (dec.), 2115/04, 15   May 2007, Information   Note 97 .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes