MOREIRA BARBOSA v. PORTUGAL DECISION
3
They submitted, firstly, that the State incurred non-contractual liability
for an infringement of the right to obtain a decision within a reasonable time
and was therefore under an obligation to pay compensation to victims. To
that end, the applicant could avail himself of an action to establish noncontractual liability, as provided for in Legislative Decree no. 48051 of
21 November 1967, which was an accessible, sufficient and effective means
of remedying the situation he complained of.
...
The applicant submitted that none of the remedies referred to by the
Government provided effective or sufficient redress in respect of his
complaint. The action to establish non-contractual liability provided for in
Legislative Decree no. 48051 did not have a sufficient degree of legal
certainty to be used for the purposes of Article 35 § 1 of the Convention. As
regards the order for the defendant to be tried in absentia, it had been lawful
and any remedy was therefore bound to fail.
...
... the Court observes that Articles 108 and 109 of the Portuguese Code
of Criminal Procedure afford defendants the opportunity to apply for an
order to expedite the proceedings. It points out that such an application has
been held to be a remedy that must be used in respect of the length of
criminal proceedings (see Tomé Mota v. Portugal (dec.), no. 32082/96,
ECHR 1999-IX).
The Court notes that in the instant case the applicant made such an
application but without success. It remains to be determined whether he
should also have brought an action to establish non-contractual liability on
the part of the State. Such an action has likewise been held to be a remedy
that must be used in respect of the length of proceedings (see Paulino
Tomás v. Portugal (dec.), no. 58698/00, ECHR 2003-VIII).
The Court reiterates in this connection that applicants must have made
normal use of those domestic remedies which are likely to be effective and
sufficient. When a remedy has been attempted, use of another remedy which
has essentially the same objective is not required (see Wójcik v. Poland,
no. 26757/95, Commission decision of 7 July 1997, Decisions and Reports
90, p. 24, and Günaydin v. Turkey (dec.), no. 27526/95, 25 April 2002).
Having regard to the circumstances of the case, the Court considers that
it would be unreasonable to argue that the applicant should have brought an
action of the kind referred to by the Government, seeing that in the course
of the proceedings he availed himself of a remedy – an application for an
order to expedite the proceedings – which the Court has previously found to
be adequate and sufficient (see Quiles Gonzalez v. Spain (dec.),
no. 71752/01, 7 October 2003).
The Court therefore dismisses this limb of the Government’s objection.
...