Interim Resolution CM/ResDH(2007)108
concerning the judgments of the European Court of Human Rights
in 25 cases against Portugal (see Appendix II)
relating to the excessive length of proceedings
(Adopted by the Committee of Ministers on 17 October 2007,
at the 1007th meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”),
Having regard to the number of judgments of the European Court of Human Rights (“the Court”) finding Portugal in violation of Article 6, paragraph 1, of the Convention on account of the excessive length of judicial proceedings (see Appendix II to this resolution);
Recalling that the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court involves an obligation rapidly to adopt the individual measures necessary to erase the consequences of the violations as well as to adopt general measures preventing new violations of the Convention similar to those found including provision of effective domestic remedies pending the entry into effect of the necessary changes;
Recalling in this respect the Committee of Ministers’ Recommendation to member states Rec(2004)6 regarding the need to improve the efficiency of domestic remedies;
Recalling furthermore that excessive delays in the administration of justice constitute a serious danger for the respect of the rule of law;
Having invited Portugal to inform it of the measures adopted or being taken in response to these judgments and having examined the information provided by the Portuguese authorities in this respect (as it appears in the Appendix I to this interim resolution);
Having noted the individual measures taken by the authorities to provide the applicants redress for the violations found (restitutio in integrum), in particular the payment of the just satisfaction awarded by the Court in all cases and the acceleration, as far as possible, of the proceedings which were still pending after the findings of violations by the Court;
Noting with satisfaction that the domestic proceedings at issue have been brought to an end in 22 of the 25 cases concerned;
Noting however with concern that three of the cases are still pending before the domestic courts, after 19 years and 7 months (Oliveira Modesto and others), 15 years (Garcia da Silva) and 11 years and 9 months (Sociedade Agrícola do Peral and other) respectively;
Noting with satisfaction that the Portuguese authorities are providing the Committee with frequent and detailed updates on the progress in these proceedings;
Measures to remedy the excessive length of proceedings
Recalling that numerous violations found by the Court were due to excessive delays in various kinds of judicial proceedings in Portugal, thus revealing certain structural problems in the administration of justice;
Welcoming the numerous reforms adopted by the authorities in order to remedy these structural problems (see details in Appendix I), and in particular:
- the increase in the number of judges
- the reduction of the civil litigation and a geographically more even spread of cases among civil courts,
- the setting up of new district administrative tribunals with competences previously vested in the Supreme Administrative Court and the Central Administrative Tribunal,
- the increase of the number of justices of the peace and “mediation services”, which facilitate settlement of disputes by means of conciliation between the parties and the increase of their fields of competence
Considering however that the impact of the reforms adopted on the length of proceedings in Portugal and their actual capacity to prevent new similar violations can only be assessed on the basis of comparative, statistical data;
Noting that the first evaluations of the measures adopted seem to show a positive trend, indicating that in 2006, for the first time in more than 10 years, the number of concluded proceedings was greater than the number of initiated ones;
Considering that more statistical data, over a longer period of time, are necessary for a full assessment of the effectiveness of the measures adopted;
Measures regarding effective remedies
Noting that articles 108 and 109 of the Portuguese Code of Criminal Procedure enable a person to complain of the excessive length of criminal proceedings in Portugal and to request their acceleration, thus providing a true legal remedy, as recognised by the Court in its decision on admissibility in the case of Tomé Mota of 2 December 1999;
Noting further that, as noted by the Court in its decision on admissibility in the case of Gouveia da Silva Torrado of 22 May 2003, the case-law of the Portuguese Supreme Administrative Court has developed so as to ensure that the decree of 1967 on the extra-contractual civil responsibility of the state provides an effective remedy against the excessive length of civil proceedings, but noting that confirmation is awaited of the general application of this case-law;
Welcoming the ongoing legislative process to replace the decree of 1967 by a Law on the regime of extra-contractual civil responsibility of the state and other public entities which would explicitly regulate the extra-contractual responsibility of the state for the violation of the right to a judicial decision within a reasonable time, thus providing a more stable basis for this effective remedy;
Recalling the consistent position of the Convention organs that the existence of an effective domestic remedy does not obviate the obligation to pursue the adoption of general measures required to prevent new violations of the Convention;
INVITES the Portuguese authorities to provide for acceleration as much as possible of the proceedings in the three cases still pending before the Portuguese courts, to bring them to an end as soon as possible, and to keep the Committee informed of the progress in this respect;
ENCOURAGES the Portuguese authorities to continue their efforts in solving the general problem of the excessive length of judicial proceedings before civil, administrative, criminal, family and labour courts, and keep the Committee informed thereof;
INVITES the authorities to provide the Committee with further information on the practical impact of all the reforms on the length of judicial proceedings, and in particular with additional comparative, statistical data in this respect;
INVITES the authorities further to continue the legislative process with a view to the adoption of the draft Law on the regime of extra-contractual civil responsibility of the State and other public entities, which would provide a more stable basis for the effective remedy in civil and administrative proceedings;
DECIDES to resume consideration of the outstanding individual measures and the general measures in these cases at its third meeting in 2008 at the latest.
Appendix I to Interim Resolution CM/ResDH(2007)108
Information provided by the Government of Portugal
during the examination of the cases
concerning the excessive length of proceedings
by the Committee of Ministers
The Portuguese authorities have recently provided a comprehensive summary on the progress in the proceedings still pending. Only the cases of Oliveira Modesto and others, Sociedade Agrícola do Peral and Other and Garcia da Silva are currently still pending before the domestic courts. In the case of Oliveira Modesto, the proceedings are expected to be concluded by September 2008. The payments to the creditors would then be made by the end of 2008. In the case of Garcia da Silva, the proceedings are still pending for various reasons, including the lack of cooperation from the parties involved. Finally, in the case of Sociedade Agrícola do Peral a judgment has recently been delivered, which is now the subject of an appeal to the Supreme Administrative Court.
A) Measures taken to reduce the length of criminal and civil proceedings
- The possibilities of applying the judicial regime of injunction has been increased and extended to the recovery of debts arising from contracts of a value not higher than almost 15 000 euros. This will ensure the transfer of this type of cases from the courts to their registries.
- Several new laws have been introduced to simplify legal procedures and make them more flexible, for example by regulating the use of electronic documents and signatures and by enabling the judiciary to treat cases jointly.
- The rules as regards the territorial jurisdiction of courts have changed, with the consequence that the number of proceedings is more geographically spread instead of being concentrated in the two biggest cities.
- Bankruptcy procedures have been reformed so that insolvency and bankruptcy cases are begun within reasonable time (Law 39/2003).
- The legal regime concerning the payment of insurance premiums has been changed, with a view to avoiding a great number of declaratory actions before the courts.
- A Law and, subsequently, a decree have been adopted in 2007 amending the rules regarding appeal proceedings in civil cases, aimed at, among other things, reducing the number of appeals brought in general and to the Supreme Court in particular. The new legislation eliminates the difference between two forms of appeal, thus unifying the regime on appeals in civil cases. One of its aims is to prevent that the High Court of Justice often needs to decide on questions that have been previously decided on, thus enhancing its role as “case law guider” of the judicial system. This draft law also allows for a reopening of proceedings when the judgment in question is not in accordance with a decision of an international body.
- A temporary law, applicable only in the year 2006, was adopted, providing tax incentives in compensation for withdrawal of pending proceedings.
- Enforcement proceedings have been reformed by assigning certain functions (e.g. summonses, publications, sale of seized goods) to specialised enforcement officers. The new legislation (Legislative Decree 38/2003) in particular sets out stricter rules and time-limits for enforcement proceedings. Such proceedings represented 52.3% of all civil proceedings in Portugal in 2003. The reform is expected to ensure a more reasonable length of enforcement proceedings, as under the new regime 80% of applications are no longer dealt with before a court, but passed directly to enforcement officers. The processing of claims is further accelerated with the entry into operation of an online application system via internet.
2) Administrative and fiscal proceedings:
- Laws have been passed to simplify and accelerate administrative proceedings in specific fields (Law 13/2002 approving the new Statute of the administrative and fiscal tribunals and Law 15/2002 approving the Code of procedure applicable in the administrative and fiscal tribunals). In particular, these laws provide the creation and establishment of new district administrative tribunals with competencies previously vested in the Supreme Administrative Court and the Central Administrative Tribunal. The Central Administrative Court has been turned into a Court of Appeal. This reform entered fully into force on 01/01/2004, when 14 new tribunals, in which 83 new magistrates sit, became operational. During the first semester of 2004, 3,686 sets of administrative and 5,595 sets of fiscal proceedings were initiated. At the end of the first trimester, 669 administrative and 547 fiscal proceedings had been closed. The Portuguese authorities state that these reforms have significantly increased both the speed of proceedings and the number of cases closed.
- Several aspects of the fiscal regime applicable to bad debt have been modified so as to decrease the amount of proceedings brought in this field.
- An Action Programme to Modernise Tax Justice was approved by Decree Law 182/2007 and is being implemented since January 2007. This Programme allocated magistrates to pending proceedings and reinforced the technical support to the courts. The recruitment of new magistrates and judicial clerks in this field will continue. The Programme also provides for the creation of a new Administrative and Tax Court and 6 new Liquidation Sections.
3) Criminal proceedings:
- Numerous amendments of the Criminal Code and the Code of Criminal Procedure were adopted and have entered into force on 15 September 2007. One of the main aims of these reforms was to allow criminal proceedings to be conducted simpler and more speedily, without prejudice to the fundamental rights of the suspect in question. Therefore, amendments were made regarding certain time-limits: whenever a time-limit is not met, action is immediately taken within the court system, possibly leading to procedural acceleration by the Public Prosecutors Office. The maximum period of detention on remand has been reduced. In addition, the number of cases in which special, shorter kinds of proceedings, often on basis of consensus, are applicable, has been increased. Several acts may now be performed on non-working days and the time-limits for these actions continue to run during judicial holidays. Procedures regarding a conflict of competence between courts have been simplified. Also, the transcription of recordings of trial proceedings on appeals is no longer mandatory, removing one of the main causes of delays in appeals in criminal cases. Finally, the possibility of mediation has been introduced in criminal proceedings, allowing cases to be settled without the need for a trial.
The reopening of criminal proceedings after a decision of an international Court has also been made possible in the new legislation.
- Several infractions and contraventions have been removed from the criminal jurisdictions and transferred to administrative ones.
- The amount as from which cheques without provision are criminalised has been increased, a previous increase having proved effective in reducing the number of such criminal cases.
4) The length of proceedings in general:
- New judges are being recruited and trained and computer systems for the judiciary are being developed.
In 2004, 118 new judges and 69 prosecutors, trained at the School of Magistrates, were appointed. In addition, the amount of vacation judges can take per year has been significantly reduced.
- A law has been passed to regulate the jurisdiction of justices of the peace and “mediation services”, to promote settlement of disputes by means of conciliation between the parties (Law 78/2001). After several increases, there are currently twelve justices of the peace operating in Portugal. Increasing the number of justices of the peace and their fields of competence has meant that they handle many more cases, thus relieving the burden on the courts. In 2004, the number of cases brought before justices of the peace was 2,535, where in 2002 it was 336. This number continues to rise. The average length of proceedings before justices of the peace is two months.
- Currently 32 authorised arbitration centres are operational, with competences in both civil and administrative disputes. 8 of these are technically and financially supported by the State. For example, in 2006 an arbitration centre competent in matters concerning hospital debts was created. Two other centres will be created shortly, competent in matters relating to industrial property and in administrative disputes concerning public contracts.
- Laws have also been adopted to increase the number of judges. In particular, these laws provide: exceptional shortening of magistrates’ traineeships, the temporary assignment of lawyers with recognised professional experience as judges in courts of first instance, the recruitment of judges’ assistants and the establishment in courts of special sections of retired judges to deal with pending or delayed cases (Legislative Decree 179/2000, Legislative Decree 330/2001, Law 7-A/2003 and Law 3/2000). Between September 2000 and December 2003, 5,438 cases were transferred to these special sections. All in all this reform has had positive effects, although these have been limited due to the total number of cases pending before the courts. The establishment of these sections was a temporary reform, only valid until 2003.
- The Bureau of Legislative Policy and Planning of the Ministry of Justice has, in cooperation with an association belonging to the law faculty of the Universidade Nova in Lisbon, prepared a report, evaluating the system of appeal in civil and criminal proceedings. A public debate on this report has been held, which inspired several legislative amendments.
- Several so called e-Justice mechanisms have been introduced, aiming to facilitate the access to justice on the one hand and accelerating judicial proceedings on the other.
- Pending a modernisation of the judicial system in general, which will enter into force in 2008, several urgent reorganisational measures have been adopted, creating for example 22 new specialised Sections of the courts. The above-mentioned more elaborate reform will, among other things, focus on the geographical distribution of courts, with a view to improving rationality, effectiveness and access to justice.
5) The effectiveness of the measures adopted
- The first evaluations of the measures adopted seem to show a positive trend, indicating that in 2006, for the first time in more than 10 years, the number of concluded proceedings was greater than the number of initiated ones. The number of concluded proceedings increased with 14,3% and the number of initiated proceedings decreased with 4,4% as compared to 2005.
B) Legislative measures to introduce an effective domestic remedy in cases of excessive length of judicial proceedings
Articles 108 and 109 of the Portuguese Code of Criminal Procedure enable a person to complain of the excessive length of criminal proceedings in Portugal and to request their acceleration. These articles thus provide a true legal remedy.
In addition, the case-law of the Portuguese Supreme Administrative Court has developed so as to ensure that the decree of 1967 on the extra-contractual civil responsibility of the State provides an effective remedy against the excessive length of civil proceedings.
A legislative process is ongoing to replace this decree with the Law on the regime of extra-contractual civil responsibility of the State and other public entities which explicitly regulates the extra-contractual responsibility of the State for the violation of the right to a judicial decision within a reasonable time. This process is in its final phase.
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Appendix II to Interim Resolution CM/ResDH(2007)108
a. Cases before civil courts
34422/97 Oliveira Modesto and others, judgment of 08/06/00, final on 08/09/00
54926/00 Costa Ribeiro, judgment of 30/04/03, final on 30/07/03
53997/00 Dias Da Silva and Gomes Ribeiro Martins, judgment of 27/03/03, final on 27/06/03
53534/99 Esteves, judgment of 03/04/03, final on 03/07/03
56345/00 Ferreira Alves No. 2, judgment of 04/12/03, final on 04/03/04
53937/00 Ferreira Alves, Limited, judgment of 27/02/03, final on 27/05/03
49671/99 Ferreira da Nave, judgment of 07/11/02, final on 07/02/03
56110/00 Frotal-Aluguer de Equipamentos S.A., judgment of 04/12/03, final on 04/03/04
58617/00 Garcia da Silva, judgment of 29/04/2004, final on 29/07/2004
49279/99 Koncept-Conselho em Comunicação e Sensibilização de Públicos, Lda, judgment of 31/10/02, final on 31/01/03
52412/99 Marques Nunes, judgment of 20/02/03, final on 20/05/03
54566/00 Moreira and Ferreirinha, Lda and others, judgment of 26/06/03, final on 26/09/03
55081/00 Neves Ferreira Sande e Castro and others, judgment of 16/10/03, final on 16/01/04
57323/00 Pena, judgment of 18/12/03, final on 18/03/04
48187/99 Rosa Marques and others, judgment of 25/07/02, final on 25/10/02
59017/00 Soares Fernandes, judgment of 08/04/2004, final on 08/07/2004
44298/98 Tourtier, judgment of 14/02/02, final on 14/05/02
b. Cases before administrative courts
52662/99 Jorge Nina Jorge and others, judgment of 19/02/04, final on 19/05/04
55340/00 Sociedade Agrícola do Peral and autre, judgment of 31/07/03, final on 31/10/03
c. Cases before criminal courts
48956/99 Gil Leal Pereira, judgment of 31/10/02, final on 31/01/03
14886/03 Monteiro da Cruz, judgment of 17/01/2006, final on 17/04/2006
50775/99 Sousa Marinho and Marinho Meireles Pinto, judgment of 03/04/03, final on 03/07/03
52657/99 Textile Traders, Limited, judgment of 27/02/03, final on 27/05/03
d. Case before family courts
51806/99 Figueiredo Simoes, judgment of 30/01/03, final on 30/04/03
e. Case before labour courts
53795/00 Farinha Martins, judgment of 10/07/03, final on 10/10/03