CASE OF GUINCHO v. PORTUGAL
Violation of Art. 6-1;Pecuniary damage - financial award
8. The applicant is a Portuguese citizen, born in 1949. He works as an electrician and resides in Lisbon. On 18 August 1976, he was travelling in a car with Mr. Domingos Lopes, who was the owner and driver of the car, and with the latter’s brother, Mr. José Carlos Lopes. At Alverca, the car entered into collision with a vehicle belonging to the Canalux Company of Lisbon and driven by Mr. Antonio Rodrigues Baptista Dinis. Mr. Guincho was injured and lost the use of his left eye; on 18 May 1977, he was certified as having a permanent partial disability. 9. After being notified of the accident by the local police, the public prosecutor’s department at the Vila Franca de Xira Regional Court instituted criminal proceedings against the drivers of both vehicles for causing unintentional bodily harm. On 20 January 1977, the applicant learnt that the file on the case had been closed as a result of an amnesty granted under a Legislative Decree. 10. On 7 December 1978, Mr. Guincho and Mr. D. Lopes ("the plaintiffs") commenced a civil action in the Vila Franca de Xira Regional Court against Mr. Dinis, the Canalux Company and the "Tranquilidade" Insurance Company ("the defendants"). The applicant claimed damages of 350,000 Escudos. Under Article 68 of the Road Traffic Code, civil liability actions in road traffic matters must be conducted in accordance with summary procedure. Under the Code of Civil Procedure (Articles 783 to 800), this procedure is characterised, inter alia, by the reduction of certain time-limits. 11. On 9 December 1978, the judge of the second chamber (2o juizo) of the Vila Franca de Xira Regional Court granted the plaintiffs legal aid and ordered service of the writ on the defendants. In this connection, the judge issued a request for service (oficio precatorio) in Lisbon, the defendants’ place of residence. In principle, when such a request is received at a court the registry has two days in which to submit it to the judge. The latter must then order the writ to be dispatched for service within five days, following which the relevant registry official is bound to execute the request for service within a similar five-day interval unless he has a justifiable excuse (Articles 159 and 167 of the Code of Civil Procedure). On 30 January, 28 February, 2 April, 4 May and 11 June 1979, the judge of the first chamber of the Vila Franca de Xira Regional Court, replacing the judge of the second chamber (whose post was vacant), insisted that the request for service of the writ be given effect. However, this was not done until 18 June. 12. The "Tranquilidade" Insurance Company filed its defence (contestaçao) on 27 June contesting the plaintiffs’ claims. It applied to have a third party, Mr. José Lopes (see paragraph 8 above), joined in the proceedings (intervençao principal). On 2 July 1979, Mr. Dinis and the Canalux Company filed their defence. They indicated that at the appropriate moment they would be seeking to have a medical examination of the plaintiffs. 13. The registry of the Vila Franca de Xira Regional Court transmitted the file to the judge on 4 July. On 28 January 1981, the judge directed that the defence pleadings be communicated to the plaintiffs and that they are allowed five days to reply to the interlocutory application by the "Tranquilidade" Insurance Company. In their reply filed on 9 February 1981, the plaintiffs took issue with the other side’s submissions and claimed that the interlocutory application was a delaying tactic as Mr. José Lopes, who was the brother of Mr. Domingos Lopes, had suffered no prejudice and had expressly waived his right to claim damages. In addition, they complained that they had not been notified until January 1981 of defence pleadings dating back to June and July 1979, and informed the Regional Court that Mr. Guincho had lodged a petition with the European Commission of Human Rights in connection with the length of the proceedings. The registry of the Regional Court did not transmit this reply to the judge until 26 March 1981. 14. In the meantime on 10 February 1981, the judge had declared the interlocutory application admissible on the ground that no objection had been raised against it, and he directed that a summons be served on Mr. José Lopes, who resided in Loures. A request for service in that jurisdiction was issued on the same day and service was effected on 26 February. On 27 March 1981, the above-mentioned judge, having received late notice of the objection to the application, decided nonetheless to maintain his decision of 10 February 1981. In a preliminary decision (despacho saneador) taken on the same day, he declared the main action admissible and drew up a list of uncontested facts (especificaçao) and a list of facts that had to be clarified at the hearing (questionario). 15. The parties did not enter an appeal (agravo) against this decision. On 29 April, 30 April and 5 May 1981, they filed in the registry the list of witnesses they proposed to call. Mr. Guincho and Mr. D. Lopes asked that one of their witnesses, Maria do Sacramento Peixoto Silva, be heard at Almada, the seat of the Regional Court within whose jurisdiction she was said by them to reside. The judge consented on 18 May 1981 and a request for evidence on commission (carta precatoria) was issued on 1 June. On 8 June, the Almada Regional Court set the hearing down for 9 July 1981. However, the Court discovered soon afterwards that Mrs. Silva did not reside within its jurisdiction; on 12 June, it forwarded the request to the Seixal Regional Court, the competent court in this respect. 16. On 26 June, the judge of the Seixal Regional Court issed a direction to the effect that he would hear the witness on 12 October. On 9 October, the lawyer representing the first two defendants sent the judge a telegram saying that he could not be present because of illness. Mrs. Silva failed to appear on 12 October. The same day, the judge fined her and directed that she be heard on 17 November 1981. However, the lawyer once more notified the judge by telegram that he was still unwell, and the witness did not attend. The judge thereupon adjourned the hearing of the witness until 10 February 1982; Mrs. Silva was finally examined on that date. 17. The evidence taken on commission was sent to the Vila Franca de Xira Regional Court. The judge dealing with the case received it on 16 February 1982. The following day, he submitted the file to the two other judges of the full Court who certified it on 18 February. On 19 February, he directed that the hearings be held on 12 March 1982. The hearings could not be held on that day because of the absence of the lawyer representing the first two defendants and of two other persons, namely Fernanda do Carmo Oliveira, in respect of whom the summons as requested by the "Tranquilidade" Insurance Company indicated an address where she was not known, and a witness called by the plaintiffs, the police officer Adriano da Cruz Surreira. The latter witness had drawn up the report on the accident (see paragraphs 8 and 9 above) but had subsequently been transferred to Oporto. The judge therefore adjourned the hearings until 16 June and then until 15 December 1982. He also issued a request for the evidence of the latter witness to be taken on commission in Oporto, as he had been asked to do by counsel for Mr. Guincho and Mr. Lopes. 18. The Oporto Regional Court summoned Mr. Surreira to appear on 14 May 1982, but on that day neither he nor the lawyers representing the plaintiffs and the first two defendants attended and the hearing was deferred until 3 June. However on 18 May, the judge was informed that the witness had again changed his residence and was serving in Montalegre; the request for evidence on commission was therefore forwarded to the Regional Court of that town. The Montalegre Regional Court set the hearings down for 1 June 1982. On that day, Mr. Surreira’s superiors gave notice that the demands of public service (razoes inadiaveis de servico publico) prevented his attendance. Counsel on both sides also failed to appear. Examination of the witness took place finally on 17 June 1982 and the evidence on commission was remitted to the Vila Franca de Xira Regional Court. 19. On 29 July 1982, because of the impending court vacation, the competent judge decided to bring the hearings forward to 20 October 1982. The hearings were duly held on that day. Judgment was given on 25 October 1982. The Regional Court found for the plaintiffs; it held that they were entitled to damages from the defendants within the limits of the statement of claim but subject to the proviso that the liability of the "Tranquilidade" Insurance Company could not exceed 200,000 Escudos. The Regional Court awarded Mr. D. Lopes, compensation for repairs to the car and for pecuniary and non-pecuniary prejudice. In the case of Mr. Guincho, on the other hand, it considered that the amount of the award could not yet be assessed, and it reserved the decision on quantum for the procedure for "execution" of the judgment (liquidacao en execucao de sentenca) in accordance with Article 661 para. 2 of the Code of Civil Procedure. The judgment was notified in writing to the applicant on 3 November. The Regional Court subsequently liquidated the costs and expenses, having varied its decision with regard to this point in December 1982. The applicant was given notification thereof on 9 December 1982 and then on 17 January 1983. None of the parties appealed. 20. On 22 September 1983, Mr. Guincho sought "execution" of the judgment in the Vila Franca de Xira Regional Court. Prior to that, he had received from the "Tranquiladade" Insurance Company part of the sum claimed. According to the evidence adduced before the Court, the Vila Franca de Xira Regional Court has not yet fixed the quantum of compensation to be awarded to the applicant. The socio-political situation 21. The Government stressed that at the relevant time the Portuguese legal system had to operate under exceptional circumstances on account of the restoration of democracy in April 1974, the need to consolidate the newly set up institutions and the repatriation of almost a million people from the former colonies. The domestic courts had to be reorganised in a period of serious economic recession. From 1974 to 1979, the volume of litigation almost doubled. On 25 April 1974, there were only 336 judges in office, that is approximately four times fewer judges per inhabitant than the European average; by the end of 1983, the number had risen to 952. In 1976, court administration posts totalled 2,844, including 20 per cent vacant; currently, on the other hand, 5,566 of the 5,714 existing posts are filled. After the Constitution was published in 1976, several measures relating to the administration of justice were taken. Notably, access to legal aid was improved, Acts governing the judiciary, the Supreme Council of the Judiciary and the office of the Procurador-Geral were passed, a judicial re-organisation of the territory was carried out and a Centre of Judicial Studies (Centro de Estudos Judiciarios) was set up to train judges and judicial officers. Situation at the Vila Franca de Xira Regional Court 22. Against this general background, the population of Vila Franca de Xira increased by nearly one quarter between 1978 and 1984, partly because of the privileged position of the town on an important main road and partly because of the influx of people repatriated from the former colonies. According to the statistics supplied by the Government, the number of cases, both civil and criminal, before the chambers of the Vila Franca de Xira Regional Court increased sharply: 2,377 in 1976, 2,705 in 1977, 4,079 in 1978, 4,175 in 1979 and 5,485 in 1980. As far as civil actions were concerned, the following figures were cited: 1978 - first chamber: 206 second chamber: 199 1979 - first chamber: 457 second chamber: 337 1980 - first chamber: 579 second chamber: 508 23. The established posts of judge in the second and first chambers of the Vila Franca de Xira Regional Court remained vacant for more than five months (from 7 January 1979 to 26 June 1979) and nine months (21 June 1979 - 8 April 1980), respectively. On each occasion, the judge sitting in the other chamber was obliged to deputise during the period of vacancy; in particular, the judge of the first chamber acted in this way in the applicant’s case (see paragraph 11 above). 24. According to uncontested information furnished by Mr. Guincho’s representative, the lawyers in Vila Franca de Xira met on 14 December 1979 and drew the attention of the Supreme Council of the Judiciary and the Minister of Justice to the "chaotic" situation of the Regional Court and asked for urgent measures to be taken, in particular the appointment of another permanent judge, three seconded assistant judges, an investigating judge, a registrar and six court officials whose posts were then vacant. On 18 February 1980, they raised the matter again with the Minister of Justice. On 29 May, they sent a telegram to the Supreme Council of the Judiciary once more urging the appointment of judges and emphasising that it was "humanly impossible" for the two judges in office to cope with the backlog of cases. On 27 February 1981, they made further representations to the Minister and the Supreme Council. On 19 March 1981, the judge of the second chamber himself requested the relevant department of the Ministry of Justice to recruit a number of court officials as a matter of urgency. Steps taken by the Government 25. The Government pointed out that from 1 October 1980 to 19 February 1981; the four judges sitting on the Vila Franca de Xira Regional Court were aided by a seconded assistant judge. Furthermore, as from March 1981, the Supreme Council of the Judiciary decided that three judges from Lisbon should work on a part-time basis in in the Vila Franca de Xira Regional Court. The number of court officials varied as follows: 1977: 14 out of 17 posts filled; 1978: 15 out of 23 posts filled; 1979: 27 out of 33 posts filled; 1980: 24 out of 27 posts filled; 1981: 23 out of 26 posts filled; 1984: 33 posts, all filled. According to the Government, the Supreme Council of the Judiciary recommended especial speediness in the conduct of the applicant’s case.