CASE OF SOCIEDADE DE CONSTRUCOES MARTINS AND VIEIRA, LDA v. PORTUGAL
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46-2 - General measures)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
4. The applicant company is a Portuguese limited liability company. The second and third applicants are the applicant company’s managing partners (see Annex for details). 5. On 17 September 1999 the Porto Criminal Department for Investigation and Prosecution (Departamento de Acção e Investigação Penal) started an investigation into the applicant company’s fiscal activity between 1994 and 1997. 6. Following the investigation, two sets of fiscal criminal proceedings were instituted before the Porto and Barcelos Criminal Courts. 7. On 20 December 1999 the applicants were made defendants (arguidos) in both sets of proceedings. 8. On 5 November 2003 the public prosecutor brought charges (acusação) against the applicant company and third applicant in the Porto Criminal Court for tax fraud in relation to activities dating back to 1997, when the applicant company was registered in Porto. 9. On 27 September 2005 the trial began. The hearing was adjourned to October and then to 27 March 2006 due to the absence of some of the defence witnesses. 10. On the day of the hearing, the applicant company’s and third applicant’s representative resigned. The hearing was adjourned pending his replacement. 11. In June 2006 the applicant company and third applicant gave power of attorney to the same lawyer. 12. On 14 November 2006 the applicants informed the Porto Criminal Court that they had sought a judicial review before the Porto Administrative and Fiscal Court of a tax adjustment applied to them regarding the applicant company’s fiscal activity between 1994 and 1997. 13. On 29 November 2006 the Porto Criminal Court suspended the fiscal criminal proceedings in accordance with Article 50 § 1 of the Legal Framework for Non-Customs Tax Offences (Regime Jurídico das Infracções Fiscais não Aduaneiras – “RJIFNA”). 14. On 19 December 2008 the applicants applied to the High Council of Magistrates (Conselho Superior de Magistratura) for an order to have the criminal proceedings expedited (pedido de aceleração processual). 15. On 5 May 2009 the High Council of Magistrates dismissed their application on the grounds that the delay in the proceedings, under the law, was attributable to the Porto Administrative and Fiscal Court rather than the Porto Criminal Court. The Council pointed out that the applicants should have therefore lodged their expedition application with the High Council of the Administrative and Fiscal Courts. 16. The proceedings are still pending before the Porto Criminal Court. 17. On 28 April 2003 the public prosecutor of the Barcelos Criminal Court brought charges against the three applicants for tax fraud and abuse (fraude fiscal e abuso de confiança fiscal) in relation to activities that had taken place between 1994 and 1996, when the applicant company was registered in Barcelos. 18. On 1 October 2003 the applicants contested the proceedings. On the same date they applied for them to be suspended until a final decision was adopted in relation to the judicial review pending before the Porto Administrative and Fiscal Court (see paragraph 13 above). 19. On 17 November 2003 the Barcelos Criminal Court ordered that the proceedings be suspended in accordance with Article 50 § 1 of the RJIFNA and requested information from the Porto Administrative and Fiscal Court regarding the progress of the judicial review. 20. On 14 December 2006 the Porto Administrative and Fiscal Court informed the Barcelos Criminal Court that the proceedings brought by the applicants against the tax adjustment were still pending. 21. On 23 April 2007 the Barcelos Criminal Court suspended the proceedings until a final decision was adopted by the Porto Administrative and Fiscal Court. 22. On 20 October 2008 the Porto Administrative and Fiscal Court informed the Barcelos Criminal Court that the judicial review was still pending. 23. On 19 December 2008 the applicants applied to the High Council of Magistrates to have the proceedings expedited. 24. On 13 January 2009 the High Council dismissed their application on the grounds that the fiscal criminal proceedings had been suspended in accordance with the law. It also considered that their request should have been made to the High Council of the Administrative and Fiscal Courts. 25. The proceedings are still pending before the Barcelos Criminal Court. 26. On 10 October and 27 October 2006 the applicants instituted proceedings in tort (ação de responsabilidade civil extracontratual) against the State in the Porto and Braga Administrative and Fiscal Courts (case nos. 2533/06.6BEPRT and 1789/06.6BEBRG respectively), claiming damages for the excessive length of the above-mentioned criminal proceedings. 27. According to the latest information received by the Court on 14 February 2014, the proceedings are still pending.