MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1331/H46-20

6 December 2018

1331st meeting, 4-6 December 2018 (DH) Human rights   H46-20 Vicente Cardoso group v. Portugal (Application No. 30130/10) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2018)921, CM/ResDH(2016)149, CM/Del/Dec(2016)1259/H46-23

 

Application	Case	Judgment of	Final on	Indicator for the classification
30130/10	VICENTE CARDOSO	12/03/2013	12/03/2013	Complex problem
46336/09	ASSOCIAÇÃO DE INVESTIDORES DO HOTEL APARTAMENTO NEPTUNO AND 217 OTHERS	16/04/2013	16/07/2013
5190/14	LEONG POY	08/12/2015	08/12/2015
62252/12	ESCALDA FERREIRA	12/01/2016	12/01/2016
8349/13+	FREITAS	12/01/2016	12/01/2016
28041/13	APARECIDA DE OLIVEIRA NABOR	05/04/2016	05/04/2016
63582/13+	NUNES LUCAS SARAIVA AND TRIGO SARAIVA	04/10/2016	04/10/2016
39507/13	VEIGA DA SILVA BRAGA	26/07/2016	26/07/2016
63595/13+	MARQUES DE ALMEIDA AND GOMES ABRUNHOSA MARQUES DE ALMEIDA	13/12/2016	13/12/2016
75415/13	CARNEIRO DA SILVA	14/03/2017	14/03/2017
69062/13	CUNHA MARTINS DA SILVA COUTO	28/02/2017	28/02/2017
23603/14	ALBERTINA CARVALHO E FILHOS LDA	04/07/2017	04/07/2017
70692/13	AUSTIN AND BUDIARTINI	25/07/2017	25/07/2017
67081/13	MATEUS PEREIRA DA SILVA	25/07/2017	25/07/2017

Case description

This group of 14 cases concerns the excessive length of the proceedings in the civil courts of first instance (including enforcement proceedings) and in the administrative courts (violations of Article 6). The domestic proceedings were conducted at various periods between 2003 and the present day.

The cases of Aparecida de Oliveira Nabor, Nunes Lucas Saraiva, Marques de Almeida, Carneiro da Silva and Mateus Pereira da Silva also concern the lack of an effective remedy, before 2014, to obtain redress for the excessive length of court proceedings (violations of Article 13).

Status of execution

The Portuguese authorities have regularly submitted information on the individual measures and the payment of the just satisfaction in the cases of this group. In view of the Committee’s present examination, they also provided detailed information on the general measures on 19 June 2018 (DH-DD(2018)921).

Individual measures

The just satisfaction was fully paid in 11 cases. The European Court awarded no just satisfaction in two other cases. In Associação de Investidores do Hotel Apartamento Neptuno and Others, the just satisfaction was paid to all but one of the applicants (Mr Carlos Vilar da Silva), who died and whose heirs have not yet been identified, despite the authorities’ best efforts. The authorities undertake to pay the sum awarded as just satisfaction, should they succeed in identifying the applicant’s heirs.

In Associação de Investidores do Apartamento Neptuno, Mateus Pereira da Silva and Marques de Almeida, the domestic proceedings are still pending. In Carneiro da Silva, the domestic courts put the proceedings on hold, due to the parties’ inaction. In the other ten cases, the domestic proceedings were concluded either before or after the European Court’s judgments.

General measures

1) Violations of Article 6 (excessive length of proceedings)

a) Last examination by the Committee of Ministers

The problem of the excessive length of the civil, criminal and administrative proceedings in Portugal has been under the Committee’s supervision since 2000.

At its last examination of these cases (1259^th meeting (June 2016) (DH)), the progress achieved enabled the Committee to close its supervision of the execution of 49 cases concerning the excessive length of criminal proceedings, first instance civil declaratory proceedings and civil proceedings in general before the higher courts (see Final Resolution CM/ResDH(2016)149).

In the absence of similar positive trends, the Committee decided to continue its examination of the situation as regards first instance civil proceedings in general, civil enforcement proceedings and administrative proceedings. It encouraged the authorities to continue closely monitoring the impact of the adopted measures and to provide their analysis of the situation, based on comprehensive statistics, as well as information on the domestic monitoring mechanisms for length of judicial proceedings.

b) Developments since the Committee’s last examination

(i) Substantive measures

Between 2013 and 2015, the authorities adopted a wide range of measures to tackle the problem of excessive length of civil and administrative proceedings. These included the entry into force of a new Code of Civil Procedure in 2013, which contained provisions aimed at accelerating proceedings, and the reform of administrative procedure to streamline the functioning of the administrative courts (2015).

In their communication of 19 June 2018, the authorities presented the additional steps taken in particular between 2017 and 2018, at the initiative and under the coordination of the Ministry of Justice, to further improve the functioning of the courts, increase their capacity to respond and streamline procedures. The information provided is summarised below.

Alongside measures aimed at increasing the number of judicial and auxiliary staff in courts and enhancing their training, in particular for staff in management positions, the authorities also took steps to address the specific areas of concern identified during the Committee’s previous examination.

Thus, as regards courts of first instance, measures were adopted, inter alia, to adjust the judicial map, to expand the electronic processing of cases and requests addressed to these courts and to provide the management bodies of the judicial districts and the High Council for the Judiciary with IT tools to control and monitor the case-flow in these courts.

The parties to civil enforcement proceedings were given on-line access to their case file and the possibility to pay immediately the amounts owed. A new interface created between the IT systems of the courts and the bailiffs service gives the latter direct access to the relevant information on cases assigned to it. Furthermore, the courts now dispose of a tool allowing them to identify the cases awaiting a judicial decision or the performance of an act by the registry.

As regards administrative proceedings, new regulations were adopted to increase the number of posts for judges and prosecutors in the administrative and tax courts at all levels. Similar measures were adopted to increase the number of judicial inspection staff within the High Council of Administrative and Tax Courts, which was likewise provided with an IT tool to monitor the monthly evolution of the volume of cases registered with these courts and the duration of pending cases. Building upon the positive experience of the judicial courts, the authorities have also established a new regulatory framework for the electronic processing of cases in administrative and tax courts, at all levels of jurisdiction.

The authorities envisage further legislative measures to reduce the length of this type of proceedings. A working group set up in October 2016 by the Minister of Justice presented proposals for amendments to the Statute of Administrative and Tax Courts, the Code of Procedure in Administrative Courts and the Code of Tax Procedure. These proposals include creating teams of judges to tackle the backlog of old cases, introducing a system of specialisation for first instance courts, introducing mechanisms to optimise the administration and management of these courts, and providing specialised technical advice to the judges.

(ii) Statistical data

Civil proceedings in first instance courts: the clearance rate for the period 2013-2017 remained well above 100% (139% in 2017) and the number of pending cases therefore decreased from 1,3 million to 877,700. The average length of such proceedings likewise decreased, from 37 months in 2013 to 33 months in 2016.

Civil enforcement proceedings in first instance courts: the authorities underlined that the clearance rate for these cases has been consistently above 100% since 2013, and that it reached 183.6% in 2016 and 167.8% in 2017. As a result, the number of pending cases decreased from 1.1 million in 2013 to 702,257 in 2017. The average length of such proceedings increased from 41 months in 2012 to 46 months in 2014 and has remained since stable.

Performance of the administrative and tax courts: the number of cases pending before the courts of first instance decreased by 5.6% between 2015 and 2017. No data have been provided on the average length of the proceedings before these courts. In the higher courts, the number of pending cases has continued to increase (from 6,775 in 2013 to 8,602 in 2017) and there was also an increase in the average length of the proceedings before these courts (from 12 months in 2013 to 15 months in 2016).

2) Violations of Article 13 (lack of an effective remedy)

The Committee examined this issue in the context of the Martins Castro and Alves Correia de Castro group of cases. In 2015, the European Court confirmed that, following the evolution in the practice of the domestic courts, an action to establish non-contractual liability under Law No. 67/2007 of 31 December 2007 constituted, since 27 May 2014, an effective remedy within the meaning of Article 13 (Valada Matos das Neves v. Portugal). The Committee of Ministers put an end to its supervision of this question in 2016 (Final resolution CM/ResDH(2016)98).

Analysis by the Secretariat

-           As regards individual measures

No further individual measure is required in the leading case (Vicente Cardoso) and in nine repetitive cases, as the just satisfaction, where awarded by the European Court, was paid and the domestic proceedings concluded. The same conclusion is valid in Carneiro da Silva, in which the courts appear to face an objective impediment (the parties’ inaction) in bringing the proceedings to an end.

It is therefore proposed to close the supervision of 10 repetitive cases and to adopt the draft final resolution attached.

Further efforts appear required in Associação de Investidores do Apartamento Neptuno, Mateus Pereira da Silva and Marques de Almeida to ensure that the domestic proceedings are concluded as rapidly as possible. In the first of these cases, in view of the undertaking of the authorities to pay the just satisfaction awarded to the late Mr Carlos Vilar da Silva’s heirs, should they be identified, the question of the payment of the just satisfaction can be considered settled.

-           As regards general measures

The authorities have continued to deploy efforts to improve the efficiency of proceedings before both civil and administrative jurisdictions and have addressed the concerns previously expressed by the Committee through a comprehensive and coherent set of measures. The Ministry of Justice, which is closely monitoring the situation at the domestic level, has swiftly taken additional or corrective action, when the circumstances so required.

Since the Committee’s last examination, the civil courts of first instance have achieved very positive results in reducing the backlog for both ordinary civil proceedings and enforcement proceedings. However, the average length still remains rather high, in particular for enforcement proceedings. It is thus important for the authorities to closely monitor the impact of the measures recently adopted in this area and to take any additional action required to ensure that the average length of both types of proceedings is durably reduced.

The situation with respect to administrative proceedings is less encouraging, as noted also by the European Commission for the Efficiency of Justice (“CEPEJ”) in its 2018 evaluation of the judicial systems.[1] In the CEPEJ’s assessment, which is based on data available for 2016, the high disposition time[2] in first instance administrative courts (911 days) calls for monitoring and the situation is considered “critical” in second instance courts, which had a low clearance rate (88%) and a high disposition time (714 days). Whilst this should be a cause for concern for the Committee, it is reassuring to note that the Portuguese authorities have already reacted to this situation. Thus, the comprehensive measures presented in their latest communication appear to hold out good prospects for a sustainable solution to the excessive length of these proceedings, provided that they are fully and rapidly implemented.

Financing assured: YES