PAULINO TOMAS v. PORTUGAL
Inadmissible
The applicant, Ms Ana Maria Paulino Tomás, is a Portuguese national who was born in 1970 and lives in Caldas da Rainha (Portugal). She was represented before the Court by Ms A.P. de Carvalho, of the Caldas da Rainha Bar, who appeared on her behalf at the hearing on 27 March 2003. The respondent Government were represented at the hearing by their Agent, Mr J. Miguel, Deputy Attorney-General, assisted by Ms M.M. Flores Ferreira, Deputy Attorney-General and coordinator of the Administrative Proceedings Division of the Central Administrative Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 May 1993 the applicant brought an action for damages against two private individuals and the Motor Insurance Fund (“the Fund”) in the Caldas da Rainha District Court after suffering a road accident. She also applied for legal aid. On 25 May 1993 the court summoned the defendants to appear. The Fund filed pleadings in reply on 13 July 1993. One of the other defendants filed his pleadings on 14 July 1993 and also applied for legal aid. In an order of 10 February 1995 the court requested information from the police authorities about the financial and social circumstances of the applicant and the defendant who had applied for legal aid. The National Republican Guard replied on 26 May 1995. On 26 June 1995 the court gave a preliminary decision (despacho saneador) setting out the facts that had already been established and the matters remaining to be clarified. It also awarded legal aid to the applicant and the defendant who had applied for it. After the registry of the Caldas da Rainha District Court had realised that the applicant had not been notified either of the defendants’ pleadings in reply or of the preliminary decision, the court directed on 15 February 1996 that those documents should be served on her. On 30 September 1996 the applicant submitted a list of the witnesses she wished to have examined. She also asked the court to order an insurance company and the Caldas da Rainha medical centre to produce certain documents and requested an expert medical opinion. The court allowed her requests on 28 October 1996. The Caldas da Rainha medical centre produced the requisite documents on 30 January 1997. The insurance company did so on 2 December 1997, after the court had fined it for failing to comply with its order in good time. In an order of 30 January 1998 the court announced that the appointment of the experts would take place on 9 February 1998. The experts carried out the examination on 20 May 1998 and submitted their report on 2 June 1998. On 30 June 1998 the court set the case down for hearing on 25 November 1998. However, the hearing could not take place on that date because counsel for one of the defendants was absent. It was postponed until 26 April 1999 but could not take place on that date either, as the District Court was occupied with the taking of evidence from witnesses in a criminal case. The hearing finally took place on 16 November 1999. In a judgment of 4 January 2000 the District Court allowed the applicant’s claims in part. Article 20 § 4 of the 1976 Constitution enshrines the right to a “judicial decision within a reasonable time”. Article 22 also defines the civil liability of the State and its authorities and agents in the following terms: “The State and other public bodies shall be jointly and severally liable in civil law with the members of their agencies, their officials or their agents for actions or omissions in the performance of their duties, or caused by such performance, which result in violations of rights, freedoms or safeguards or in prejudice to another party.” Legislative Decree no. 48051 governs the State’s non-contractual civil liability. It contains the following provisions of relevance to the instant case: Article 2 § 1 “The State and other public bodies shall be liable to third parties in civil law for such breaches of their rights or of legal provisions designed to protect the interests of such parties as are caused by unlawful acts committed with negligence (culpa) by their agencies or officials in the performance of their duties or as a consequence thereof.” Article 6 “For the purposes of this Decree, legal transactions which infringe statutory provisions and regulations or generally applicable general principles, and physical acts which infringe such provisions and principles or the technical rules and rules of general prudence that must be observed, shall be deemed unlawful.” Article 7 “The obligation on the State and other public bodies and on members of their agencies and their officials to pay compensation shall not be contingent on the victims’ use of their right of appeal against the measures that gave rise to the damage; however, the right to compensation shall be available only if the damage is not attributable to the failure to lodge an appeal or to negligence in the conduct of proceedings after an appeal has been lodged.” In accordance with the case-law concerning the State’s non-contractual liability, the State is required to pay compensation only if an unlawful act has been committed with negligence and there is a causal link between the act and the alleged damage. Article 498 of the Civil Code provides that the right to compensation is time-barred after the expiry of a period of three years from the date on which the victim becomes, or should have become, aware of the possibility of exercising that right. The Supreme Administrative Court’s decision of 7 March 1989 in the case of Garagens Pintosinho, Lda was for a long time the only example of the application of Legislative Decree no. 48051 to the length of proceedings. Referring to the judgments of the European Court of Human Rights in the cases of Guincho v. Portugal (10 July 1984, Series A no. 81), Baraona v. Portugal (8 July 1987, Series A no. 122) and Martins Moreira v. Portugal (26 October 1988, Series A no. 143), the Supreme Administrative Court considered that the excessive length of proceedings was to be regarded as an unlawful act meriting compensation. The main period in issue in the Garagens Pintosinho, Lda case was the five years it took for the Lisbon industrial tribunal to deliver a judgment that should have been given within a statutory period of three days. Subsequently, on 15 October 1998, the Supreme Administrative Court gave a ruling in the case of Pires Neno, concerning civil proceedings that had lasted almost seven years for one level of jurisdiction. The appellants in that case had also lodged an application with the European Commission of Human Rights complaining of the length of those proceedings. Their application had resulted in the adoption by the Committee of Ministers of the Council of Europe of a resolution awarding them 540,000 Portuguese escudos (PTE) by way of just satisfaction. The Supreme Administrative Court allowed their claims in part and ordered the State to pay them PTE 900,000 in compensation, less the above-mentioned sum of PTE 540,000. Referring to the Strasbourg Court’s case-law, it considered, in particular, that the State incurred non-contractual civil liability for the non-pecuniary and pecuniary damage resulting from the unlawful and negligent administration of justice in breach of Article 20 of the Constitution and Article 6 § 1 of the Convention. The judgment was published and commented on in the legal journal Cadernos de Justiça Administrativa (no. 17, September/October 1999). The Supreme Administrative Court gave a similar decision on 1 February 2001 in the case of Alecarpeças, Lda, concerning the delay with which a court’s instructions had been carried out in enforcement proceedings. The court pointed out that failure to comply with procedural deadlines was not in itself an unlawful act but that it became unlawful if Article 6 § 1 of the Convention was breached at the same time. Lastly, the Coimbra Administrative Court, in a judgment of 14 July 1999 that was not contested by the State, likewise allowed a claim for damages on the basis of the State’s non-contractual liability for the excessive length of proceedings concerning an objection to an enforcement measure that had already been carried out. According to a statistical table produced by the Government, twenty-five actions to establish non-contractual liability on the part of the State for the excessive length of proceedings had been brought before the administrative courts. In four of them the courts had found against the State, and in four others the applicants’ claims had been dismissed. The proceedings are still pending in seventeen cases; in two of them, the first-instance court has found against the State, which has subsequently appealed to the Supreme Administrative Court. In July 2001 the Government tabled Bill no. 95/VIII in Parliament, concerning the State’s non-contractual civil liability and repealing Legislative Decree no. 48051. The explanatory memorandum on the bill stated, inter alia, that “for the first time in Portuguese law”, there was a statute dealing comprehensively with the State’s non-contractual liability for damage resulting from the performance of political, legislative, administrative and, “for the first time in Portugal”, judicial duties. It pointed out that it had been “thought helpful to incorporate into law various conclusions reached by the courts over the course of time”. Clauses 7 to 10 of the bill governed the State’s liability for damage caused in the performance of its administrative duties. Clause 7 (2) and (3) explicitly introduced the concept of “administrative fault” or “official error”. Clause 12 of the bill provided, inter alia: “... the rules on liability for unlawful acts committed in the performance of administrative duties shall apply to damage caused by the unlawful administration of justice, particularly in the case of a violation of the right to a judicial decision within a reasonable time.” The bill lapsed as a result of the dissolution of Parliament. On 21 November 2002, however, the new Parliament passed on its first reading Bill no. 148/IX, tabled by members of the Socialist Party, which reproduced in full the explanatory memorandum to and the text of Bill no. 95/VIII. The bill still has to be approved on its second reading. On 20 December 2002 the Attorney-General issued a circular to all officials and members of his department. He instructed them not to challenge the administrative courts’ jurisdiction ratione materiae to deal with actions to establish non-contractual liability on the part of the State for the excessive length of proceedings. By Article 76 of the Regulations on the Attorney-General’s Department, all officials and members of the department are required to abide by the circular.