CASE OF COMINGERSOLL S.A. v. PORTUGAL
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza
5. The applicant company is a public company whose registered office is at Carnaxide (Portugal). 6. It had in its possession eight bills of exchange that it had received from the A. Lda company for a total of 6,812,106 escudos. As the bills were not honoured when due, the applicant company issued enforcement proceedings against A. Lda in the Lisbon Court of First Instance on 11 October 1982 to recover the outstanding amounts. 7. After being ordered on 22 October 1982 to appear before the court of first instance, the defendant company lodged a defence to the enforcement proceedings on 6 December 1982 (embargos de executado). 8. On 7 March 1983 the judge gave directions (despacho saneador) setting out the matters that had already been established and those that remained outstanding. After instructions had been sent to the Porto, Vila Real and Bragance courts for witnesses to be heard, the case was set down for hearing on 16 October 1984, but had to be adjourned owing to the failure of the applicant company's lawyer to attend. It was finally heard on 13 November 1984. 9. On 19 June 1986 the court of first instance found in favour of the defendant company. On 8 July 1986 the applicant company appealed against that decision to the Lisbon Court of Appeal (Tribunal da Relaçao). On 27 May 1987 the case file was transferred to that court. 10. On 28 February 1989 the court of appeal overturned the impugned decision and decided to reject the defence. 11. On 18 May 1989 when the case file was still with the Lisbon Court of Appeal, A. Lda applied for legal aid for its legal costs. That application was refused by the reporting judge in an order of 19 September 1989. A further application made by A. Lda on 23 October 1989 was likewise turned down on 3 November 1989. On appeal by A. Lda, a three-judge panel of the court of appeal upheld those orders on 3 April 1990. A. Lda appealed on points of law to the Supreme Court (Supremo Tribunal de Justiça) on 7 May 1990 and on 5 November 1990 the case file was transferred to that court. 12. In a judgment of 20 December 1990 the Supreme Court dismissed that appeal. On 21 January 1991 A. Lda applied for an order referring the issue to the plenary court (tribunal pleno), but the reporting judge dismissed the application. The Supreme Court upheld that decision in a judgment of 26 September 1991. A. Lda then lodged a further appeal which was declared inadmissible by the reporting judge on 6 January 1992. That decision was subsequently upheld by the Supreme Court on 11 March 1992. Then, on 22 June 1992, A. Lda challenged the bill of costs, but on 12 October 1992 the reporting judge ordered the transfer of the case file to the court of first instance on the ground that the challenge was intended solely to delay recovery of the debt. 13. On 2 February 1984 a company, F. & F. Lda, issued a summons opposing enforcement (embargos de terceiro). In an order of 9 November 1984 the judge decided that the enforcement proceedings should be stayed until the third-party summons had been heard. However, on 8 April 1987 the judge stayed the summons until A. Lda's defence to the enforcement proceedings had been heard. On 24 March 1993, in the light of the decision taken in the enforcement proceedings, the judge decided to proceed with the examination of the third-party summons. 14. On 19 November 1997 the judge gave directions setting out the matters that had already been established and those that remained outstanding. 15. The proceedings are still pending before the Lisbon Court of First Instance.