CASE OF PERDIGAO v. PORTUGAL
Violation of P1-1;Pecuniary and non-pecuniary damage - award
Alvina Gyulumyan;András Sajó;Christos Rozakis;Elisabet Fura;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ineta Ziemele;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Mark Villiger;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva
9. The applicants were born in 1932 and 1933 respectively and live in Lisbon. 10. The applicants owned a piece of land measuring 128,619 m² in the region of Evora. By order of the Ministry of Public Works, published in the Official Gazette on 11 September 1995, the land was expropriated in favour of BRISA – Auto-Estradas de Portugal S.A. (“BRISA”), a publicly owned company at the time, to build a motorway. 11. As no agreement was reached between the applicants and the authorities, the case was submitted, in accordance with the applicable legislation, to the President of the Evora Court of Appeal, who appointed an arbitration committee to value the land. The committee assessed its value at 177,987.17 euros (EUR). 12. On 3 March 1997 the Evora first-instance court issued an order notifying the applicants of the arbitration committee's decision. 13. On 21 March 1997 the applicants lodged an appeal against the arbitration decision with the Evora court. In their opinion the experts had underestimated the value of their farmland and omitted to place a value on a quarry located on the land. They argued that the potential profit from exploiting the quarry should be taken into account when calculating the amount to be paid in compensation for the expropriation. In their opinion they were entitled to EUR 20,864,292 in compensation. 14. BRISA also challenged the arbitration value, which they considered too high. They thought the value should not exceed EUR 72,643. Their appeal was initially rejected by the Evora court as being out of time, but it was later admitted after the Evora Court of Appeal had delivered a judgment on 11 December 1997 setting aside the initial decision. 15. On 7 April 1997 the Evora court registry calculated the total court fees due in the applicants' case to be EUR 158,381. 16. On 24 April 1998 the Evora court decided that no compensation should yet be paid to the applicants as the court fees might well be higher than the minimum sum that might be awarded to the applicants in compensation according to the appeals lodged by the parties, BRISA having requested that the sum be fixed at EUR 72,643. The court then appointed a new arbitration committee made up of three experts appointed by the court and two appointed by the parties (one each). On 11 March 1999, by a majority, the arbitrators set the compensation at EUR 191,116. The arbitrator appointed by the applicants expressed the view that they should be paid EUR 4,040,897. 17. By an order of 25 March 1999 the court, of its own motion, requested a new expert report, restricted this time to the question of the economic potential of the quarry located on the land. Three geologists from the University of Evora were accordingly appointed as experts. They submitted their report on 9 February 2000, concluding that the maximum amount the exploitation of the quarry could be expected to yield was EUR 9,704,113. 18. By a judgment of 30 June 2000 the court dismissed both parties' appeals. Considering that the potential gain from the quarry was not to be taken into account, it fixed the compensation for the expropriation at EUR 197,236.25. 19. On 14 July 2000 the applicants lodged an appeal against that judgment with the Evora Court of Appeal. 20. In a judgment of 10 July 2003 the Court of Appeal upheld the judgment in full. 21. On 11 November 2003 the applicants appealed to the Supreme Court but, in an order dated 30 September 2004, the judge rapporteur of the Supreme Court declared the appeal inadmissible. 22. On 26 October 2004 the applicants lodged a constitutional appeal, which the Constitutional Court declared inadmissible by a summary decision on 20 December 2004. 23. On 26 January 2005 the file was transmitted to the Evora court. 24. On 4 February 2005 the applicants received notice from the Evora court of the court fees owed for the expropriation proceedings. The sum they were expected to pay amounted to EUR 489,188.42. 25. On 22 February 2005 the applicants filed a complaint about the fees, alleging in particular that they violated the principles of fair compensation and the right of access to a court. They considered that the sum to be paid, if it was to be proportionate, should not exceed EUR 15,000. They also pointed out what they considered to be various inaccuracies and miscalculations in the court fees. They challenged the basis used before the Evora court to calculate the court tax (which they claimed should have been that stipulated in Article 18 § 2 of the Court Fees Code), as well as the legitimacy of being required to pay anything at all in respect of costs and expenses (custas de parte) to BRISA, which, as a State enterprise, was exempt from paying court fees. 26. On 1 April 2005, acting on information provided by the registry, the Evora court judge acknowledged the mistakes the applicants had pointed out and ordered their rectification. The amount owed was thus reduced to EUR 309,052.71 so, once the compensation awarded to the applicants had been deducted, they still owed the State EUR 111,816.46. The judge dismissed the applicants' complaint regarding the alleged violations of the principles of fair compensation and the right of access to a court. 27. The applicants appealed to the Evora Court of Appeal. In a judgment of 13 December 2005, of which they were notified on 19 December 2005, the court dismissed the appeal. 28. On 12 May 2006 the applicants lodged a constitutional appeal against that decision, alleging that the interpretation of the relevant provisions of the Court Fees Code, particularly Article 66 § 2, was contrary to the principles of fair compensation and the right of access to a court guaranteed in the Constitution. In their view, court fees should on no account exceed the sum awarded in compensation for an expropriation. 29. In a judgment of 28 March 2007 the Constitutional Court dismissed their appeal. After noting that it could only examine the constitutionality of Article 66 § 2 of the Court Fees Code, the only provision the courts below had applied, it went on to hold that the provision concerned was not contrary to Articles 20 (access to a court) and 62 § 2 (fair compensation) of the Constitution. Concerning access to a court, it pointed out that while excessively high court fees could in some circumstances be an obstacle to access to a court, this was not the case in this instance as the applicants had been required to pay only EUR 15,000, a sum it considered reasonable. On the subject of fair compensation, the Constitutional Court found that compensation for the loss suffered as a result of expropriation was quite unrelated to the matter of court fees, and that there was accordingly no reason why court fees should not exceed the sum awarded in compensation. 30. On 20 April 2007 the applicants filed a request to have that judgment rectified, claiming that the Constitutional Court had made a factual mistake, in so far as it had considered in its reasoning that the applicants owed EUR 15,000 in court fees when they were in fact expected to pay EUR 111,816.46. 31. In a judgment of 25 September 2007 the Constitutional Court acknowledged its mistake and the need to rectify the judgment in respect of Article 20 of the Constitution. It found that EUR 111,816.46 was a large enough sum to have affected the right of access to a court. It accordingly declared Article 66 § 2 of the Court Fees Code, as interpreted by the lower courts, contrary to Article 20 of the Constitution. In respect of Article 62 § 2 of the Constitution concerning fair compensation, however, it held that its earlier decision needed no rectification. 32. On 6 November 2007 the applicants, wishing to know the exact sum they owed in court fees, filed a request for clarification of the judgment of 25 September 2007. 33. In a judgment of 13 November 2007 the Constitutional Court rejected that request, considering that it was for the lower court to determine the sum to be paid. 34. In an order of 4 January 2008, the Evora court, to which the case had been referred back, decided, without giving reasons, that the fees should not exceed the compensation awarded by more than EUR 15,000. 35. On 20 February 2008 the applicants paid the outstanding sum of EUR 15,000. 36. On 7 April 2005 the applicants lodged an application (no. 12849/05) with the Court complaining about the lack of compensation in respect of the quarry. The application was rejected by a committee on 30 August 2005, as being out of time. 37. Article 20 of the Constitution guarantees the right of access to a court. Article 62 of the Constitution guarantees the right of property and the right to fair compensation in the event of expropriation. 38. The general rule governing court fees is set forth in Article 446 of the Code of Civil Procedure, under the terms of which it is in principle for the unsuccessful party to pay the court fees. 39. At the time of the expropriation in issue, the applicable Expropriations Code was that introduced by Legislative Decree no. 438/91 of 9 November 1991. 40. The expropriation procedure at the time took the following form: if no agreement could be reached between the expropriating authority and the expropriated owner, the President of the Court of Appeal with jurisdiction over the area in which the property to be expropriated was located appointed an arbitration committee to value the property. The owner could appeal against the arbitration decision before the court of first instance, and a new valuation would be ordered if necessary. The decision of the first-instance court was open to appeal before the Court of Appeal, whose decision was final (legislative precedent (assento) of the Supreme Court of 30 May 1995, binding on all courts and published in the Official Gazette of 15 May 1997). 41. In Portugal court fees are likened to taxes. The Supreme Court considers that the obligation for litigants to pay court fees is the same as the obligation for taxpayers to pay taxes. The State, as the “active subject” of the fiscal obligation concerned, thus has the right to collect the fees; in exchange, it must give people (the “passive subjects”) access to judicial services (judgment of the Supreme Court of 5 February 2004, in case no. 03B3809). 42. At the material time court fees were regulated by the Court Fees Code, as embodied in Legislative Decree no. 224-A/96, of 26 November 1996, before it was amended by Legislative Decree no. 324/2003, of 27 December 2003. 43. The relevant provisions of the Code read as follows: “1. Court fees shall include the court tax (taxa de justiça) and the other charges (encargos). 2. Unless otherwise prescribed by law, all proceedings are subject to court fees.” “1. Without prejudice to the provisions of special laws, the following shall be exempted from court fees: a) The State and all its services and bodies, even if they have their own legal personality; ...” “1. In the cases mentioned below, the value of the litigation, for the purposes of calculating court fees, shall be as follows: ... s) in appeals concerning expropriations, the difference between the compensation for expropriation fixed by the arbitration committee and the sum claimed by [the expropriated party] ... ...” “1. Without prejudice to the following provisions, procedural costs shall be taxed on the basis of the table below and calculated according to the value of the actions, applications and appeals. ... “... 2. In all types of appeals against decisions pronounced in any action or application ... the court tax shall be half the amount shown in the tax column in the table [in Article 13]. ...” “... 2. No advance payment shall be required in expropriation proceedings ...” “1. A party ordered to pay court fees who is awarded a sum of money by decision of the court may request, within the time-limit for voluntary payment, that the court fees owed be deducted from the sum awarded. 2. Court fees owed by an expropriated party shall be deducted from the compensation awarded for the expropriation.” 44. The custas de parte (costs and expenses) are sums payable to the successful party at the end of the proceedings. Under Article 33 of the Court Fees Code as applicable at the material time, they included the sums the successful party had been obliged to spend in connection with the proceedings. 45. On 24 February 2008 a new Court Fees Code was introduced (Legislative Decree no. 34/2008). The explanatory memorandum includes the following passage: “According to the new scale, the court tax is not calculated simply on the basis of the value in dispute. It has been found that the sum in dispute is not a decisive factor in assessing the complexity of the proceedings or in the costs generated for the legal system. The search for a better way to calculate the court tax has led to the establishment of a mixed system based on the value in dispute up to a certain limit, with the possibility of correcting the amount where the proceedings are complex, independently of the economic value considered to be at stake.” 46. Under the new system there is therefore an upper limit on the amount that can be charged in court fees. At present, for proceedings at first instance, that amount equals 60 units of account for ordinary proceedings or 90 units of account if the proceedings are particularly complex. The charge for appeals is 20 units of account. Applications made during the proceedings continue to be taxed, of course, at a rate of up to 20 units of account, depending on the type of application (see tables appended to Legislative Decree no. 34/2008 and Articles 6, 7, 8, 11, 12, 13 and 17 of that text). 47. The Court undertook a comparative law study concerning the payment of court fees in a number of member States of the Council of Europe. 48. The study revealed that, generally speaking, the court fees charged vary according to the sum claimed (except in countries where fees charged are not based on the sum in dispute). The fees may represent a percentage of that sum, a lump sum, or a combination of the two. In many States where the fees charged are linked to the value of the claim, there is an upper limit on how much one party can be charged, but in some States there is no such limit. 49. In general the unsuccessful party is required to pay the costs of the other party. Where a claim is allowed only in part, most of the States covered by the study leave it to the discretion of the courts to decide who pays what fees. In some States special rules apply to expropriation proceedings. In one such State, for example, when fees are calculated as a percentage of the compensation offered, the principle is that the expropriated owner must nevertheless be repaid in full; in other words, all the costs effectively incurred by that party must be reimbursed, as he normally has a right to full reparation for the prejudice suffered. 50. In many States there is no guarantee that a complainant will not be charged costs and expenses in excess of the sum likely to be awarded in respect of his claim, especially when only a small part of the claim is allowed. No such risk exists in those States where court fees are calculated only at the end of the proceedings and based on the sum effectively awarded by the court.