[TRANSLATION]

THE FACTS

The applicants [Mr Joaquim Moura Carreira and Mrs Maria Margarida Lourenço Carreira] are Portuguese nationals who were born in 1910 and 1915 respectively and live in Sesimbra (Portugal). They were represented before the Court by Mr A. de Sousa Leite, of the Almada Bar.] are Portuguese nationals

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  Proceedings to set aside a protective measure

On 10 November 1978 the Seixal District Court issued a temporary injunction prohibiting the applicants from disposing of their shares in a private limited company, J.M. Carreira Lda., following an application for this protective measure (providência cautelar) by G.C. and D.C., who were also members of the company. G.C. and D.C. had alleged that the applicants had failed to honour a promise to sell shares to them.

On 20 November 1978 the applicants lodged an application to have that decision set aside (embargos). They alleged, inter alia, that the document produced by G.C. and D.C., containing the promise to sell the shares, was a forgery.

In an order of 13 June 1981, which was served on the applicants on 6 October 1983, the court invited them to bring interlocutory proceedings to challenge the authenticity of the document in question.

The applicants appealed against that order to the Lisbon Court of Appeal (Tribunal da Relação), but the outcome of the proceedings is not known. However, they also made an interlocutory application on 20 October 1983 challenging the authenticity of the document, as the court had invited them to do.

In an order of 17 January 1989 the court ruled that it could not entertain the application as it had been made out of time.

The applicants appealed against that order to the Lisbon Court of Appeal, which in a judgment of 25 January 1990 quashed the impugned decision.

The case was remitted to the Seixal District Court. On 7 March 1991 that court decided that the proceedings to set aside the protective measure should be stayed pending the outcome of the proceedings to challenge the authenticity of the document.

In a judgment of 21 October 1993 the court dismissed the interlocutory application. That decision was upheld by the Lisbon Court of Appeal in a judgment of 15 December 1994.

In a decision of 4 November 1997 the Seixal District Court permanently stayed the proceedings to set aside the protective measure, in the light of the decision taken in the main proceedings (see below). The applicants were also ordered to pay costs and expenses.

The applicants appealed against that decision, but only in relation to the costs order. In a judgment of 30 June 1998 the Lisbon Court of Appeal allowed the appeal and made an order for costs against G.C. and D.C.

2. The main proceedings

On 6 December 1978 G.C. and D.C. brought an action for damages in the Seixal District Court in respect of the applicants’ alleged failure to honour their promise to sell shares in J.M. Carreira Lda.

In a judgment of 21 February 1997 the court dismissed their claim.

G.C. and D.C. appealed to the Lisbon Court of Appeal. However, since they failed to file pleadings, the court declared the appeal invalid (deserto) in a decision of 27 June 1997. That decision was served on the applicants on 3 July 1997.

B.  Relevant domestic law and practice

At the time when the proceedings in question were instituted, applications to set aside protective measures were governed by Article 401 of the Code of Civil Procedure. In such applications complainants could challenge the proceedings whereby a protective measure had been ordered by adducing evidence capable of casting doubt on the grounds for the measure or of curtailing its scope (see Article 401 and Article 406 § 1 of the Code of Civil Procedure in the version applicable at the time, and the Supreme Court’s judgments of 18 January 1979, Boletim do Ministério da Justiça (“BMJ”) no. 283, p. 213, and 6 February 1986, BMJ no. 354, p. 434).

Under Article 389 of the Code of Civil Procedure, a protective measure ceases to have effect if the claims of the party in whose favour it was made are dismissed in the main proceedings. In that event, the court must permanently stay the proceedings in respect of the protective measure (Article 389 § 4).

COMPLAINT

Relying on Article 6 § 1 of the Convention, the applicants complained of the length of proceedings.

THE LAW

The applicants complained of the length of proceedings, relying on Article 6 § 1 of the Convention, which provides, inter alia:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government raised at the outset an objection that the applicants had not complied with the six-month time-limit laid down in Article 35 § 1 of the Convention. They argued that the main proceedings had ended on 27 June 1997, when the Seixal District Court had declared invalid the appeal by G.C. and D.C., whereas the application had not been lodged until 20 February 1998, more than six months later.

The Government further submitted that Article 6 § 1 was not applicable to the proceedings brought by the applicants to have the protective measure set aside. They pointed out that proceedings concerning a protective measure could not be said to entail the determination of a civil right, since they were not independent of the main proceedings, in which there was a determination of civil rights and obligations. In their submission, the possibility of applying to have a protective measure set aside did not alter the actual nature of the proceedings in which such a measure had been ordered.

The applicants challenged those submissions, arguing that the three sets of proceedings complained of – namely the main proceedings, the interlocutory application challenging the authenticity of the document, and the application to set aside the protective measure – should be looked at as a whole. They considered that the proceedings had been decisive for their civil rights and maintained that their application had not been lodged out of time, since the final decision had been the one delivered by the Lisbon Court of Appeal on 30 June 1998.

The Court observes at the outset that the main proceedings and the proceedings to set aside the protective measure should be examined separately.

With regard to the main proceedings, the Court notes that the final decision was the one rendered by the Seixal District Court on 27 June 1997, which was served on the applicants on 3 July 1997. Since the present application was not lodged until 20 February 1998, it was out of time as regards those proceedings, as the Government maintained.

It remains to be determined whether the proceedings to set aside the protective measure may be considered.

In that connection, the Court notes that the Convention institutions have consistently taken the view that Article 6 § 1 does not apply to proceedings for interim relief. The purpose of such proceedings is to deal with a temporary state of affairs pending the outcome of the main proceedings; consequently, they do not result in a determination of civil rights and obligations (see X. v. the United Kingdom, application no. 7990/77, Commission decision of 11 May 1981, Decisions and Reports (DR) 24, p. 57, and APIS a.s. v. Slovakia (dec.), no. 39754/98, 10 January 2000, unreported).

In the Court’s view, those findings also apply to proceedings to set aside a protective measure, such as the ones in issue. The only possible outcomes of those proceedings were the confirmation or setting aside of the protective measure or a change in the procedure whereby it had been ordered. The substantive issue, namely whether the promise to sell the shares had been honoured, could only have been determined in the main proceedings, as indeed it was. The result of the proceedings to set aside the measure was therefore not decisive, within the meaning of the Court’s case-law (see the Pudas v. Sweden judgment of 27 October 1987, Series A no. 125-A, p. 14, § 31), for a civil right; consequently, Article 6 § 1 of the Convention is not applicable.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

 moura carreira and lourenço carreira v. portugal DECISION


moura carreira and lourenço carreira v. portugal DECISION