A AG v/PORTUGAL
DECISION of 8 September 1997 on the admissibility of the application
Article 26 of the Convention
a) The exhaustion of domestic lemedies rule requires the exhaustion of those remedies that relate to the breaches alleged and that are available and sufficient
b) The burden of proxing the existence of available and sufficient domestic remedies lies upon the State in\okin}> the rule
c) An applicant who has exhausted a lemedy which is apparently effectne and sufficient cannot be required also to ha\e tried others which were available but
probably ineffectne In the present case which concerns the Stale s failure to fix
the amount of compensation for nationalised oi expropriated land (Portugal) the
applicant raised his complaints in substance befoie the administrative courts, which
declared that they had no jur i sdiction in the matter and i v not obhged also to sue
the State in tort
d) In the case of a failuie to fix the amount of compensation for nationalised or expropriated land (Portugal) an action to set aside a ministerial decision fixing the
amount of the compensation which could not be brought until the compensation
\\as fixed is not an effectne nmedv
e) Where a complaint relates to a continuing situation the six month period does not apply as long as that situation lasts
120Article 1 of the First Protocol and competence ralione tempons The Commission
IS competent to examine complaints concerning events occurring before the enltv into
force of a declaration accepting the ri^ht of individual petition to the extent that these
events created a continuing situation still existing after the date in question Although
a deprivation of ownership is an instantaneous act failure to pay definitive compensation therefor creates a continuing situation
The applicant is a Portuguese citizen He was born m 1926 and lives in Ll^bon
He was represented before the Commission by the Lisbon legal firm of Vale e
Azevedo & Associados J Vale e Azevedo, P Galvao Telles, R Cameiro Pacheco, V
Bivdr de Azevedo, P Mendes Pmto, J de Menezes et P Sarago^a da Matld
The facts, as submilted bv the parties may be summarised as follows
A
Paificular circunistaiKtS cf the (ose
In 1975, the applicant owned three parcels ot agricultural land of a total surface
area of approximately 2,145 hectares
Under the agrarian reform policy two of these parcels were nationalised by
Decree Law No 407 A/75 of 30 July 1975 and the third was expropnated by a
Ministerial Order issued by the Minister of Agriculture (No 52/76 of 29 January 1976
published under cover of Decree Law No 4U6-A/75 of 29 July 1975) The dbovemenlioned Decree Laws provided that the landowner could under certain condilions,
exercise a right of reservation (diieilo de reser\a) over a part of the land for the
purposes of continuing his aoricultural activities They also provided for compensation
to be paid, but without dehinng the amount, the time vvithin which it should be paid
or the conditions of payment
In accordance with the relevant legislation (see Relevant domestic law and
practice below), the applicant was awarded provisional compensation of 16,204,266
escudos (PTE) in March 1983 (that is, approximately 540,000 francs (FRF)) On
16 September 1991, this sum uas placed at the applicant's disposal in the form of
National Debt secunlies
The dppticant exercised his right of reservation over the land in question on
several occasions, so that from 30 September 1990 at the latest, he had recovered
fwssession of part of the land However, another part ot the land, amounting to 1,176
hectares was not returned to the applicant
121Proceedings in the civil courts and the Constitutional Court
On 30 December 1992 the applicant brought an action for damages against the
State in Lisbon Court (17th Civil Chamber) on the grounds of non payment of
definitive compensation for the expropriation in question He alleged that, in view of
the period which had elapsed since the expropnation without definitive compensation
being paid the general law on expropriation (and not the agranan reform legislation)
should be applied and, accordingly, claimed that the compensation should reflect the
fact that twenty years had elapsed since the expropnation
In d decision of 14 Janu>u-y 1993. the court dismissed the application without
examining the merits, on the basis that it lacked jurisdiction over the subject-matter
On appeal by the applicant, Lisbon Court of Appeal (Tribunal da Relagdo)
upheld this decision in a judgment of 9 December 1993
The applicant appealed on a point of law to the Supreme Court (Supremo
Tribunal de Jusliga) which dismissed his appeal on 31 May 1994 The Supreme Court
held, inter alia
A delay in payment of compensation for nalionalisation or expropriation should
not be seen as an unldwful omission on the part of the political and administra
tive authorities
It has been established that sections 15 and 16 of Law
No XO/77, which make the administrative authorities responsible for fixing the
amount of compensation due as d result of the ndtionalisation or expropriation
of agricultural land situated in the area affected by the agrarian reform policy,
are not substantivelv unconstitutional, since the hxing of such amounts is within
the domain of the administrative arm (see Constitutional Court judgment
No 39/88 of 9 February 1988)
It should be added that Decree-Law
No 198/88 of 31 May 1988 expressly gave the administrative authorities the
power to fix the amount of [Ihatl compensation
Thus, pursuant to those
Decrees, the compensation due to those previously holding rights over property
which has been nationalised, expropriated or requisitioned is to be fixed by way
of administralive decision (such decisions being open to challenge before the
Supreme Administrdti\e Court), which means that the non administrdlive courts
hdve no jurisdiction in that domain
On 17 June 1994, the applicant lodged an application for a declaration of
unconstitutionality with the Constitutional Court (Tribunal Constituciorial)
In a judgment of 7 June 1995 the Constilulional Court declared the application
inadmissible The court emphasised that the applicant had not claimed before the lower
courts that any legislative provisions were unconstitutional, but only that court decisions
were so. with the result that ic could not examine his complaints, since its role is
confined to examining whether legislative provisions not judicial decisions, are in
conformity with the Constitution
122The applicant then hied a further application with the Constitutional Court,
claiming that this judgment was void, but the application was rejected in a judgment
of 6 July 1995
Proceedings before the administrative courts
On 27 February 1985, the applicant brought an action for damages against the
State m Lisbon Administrative Court (Auditona Adnnnistrativa, now called Tribunal
Admimstrativo de circulo), seeking, inter aha, compensation for the loss he had
suffered as a result of the failure to pdy definitive compensation for the nationalisation
and expropnation of his land
In a judgment of 29 November 1993, the court found against the applicant
After rehearsing the relevdnt legislation, the court held that the only way in which the
applicant could be compensated for his alleged loss was by means of non judicial
administrative proceedings
The applicant appealed to the Supreme Administrative Court (Supremo Tribunal
Administraiivo). which upheld the lower court's decision in a judgment of 12 July
1994 The Supreme Administrative Court, after acknowledging that the applicant was
entitled to fair compensation ', emphasised that the amount of such com[>ensation had
to be fixed by the administrative authorities in the light of the relevant legislation
The applicant bled an application with the Supreme Administrative Court for an
interpretation of this judgment, v^hich was rejected on 7 February 1995. and an
application claiming that the )udgmenl was void, which was rejected on 28 M.u"ch
1995The applicant's dealings with the administrative authorities
From 1978 onwards, the applicant applied to the adniinistra(i\e authorities on
numerous occasions concerning the delay in paying him the provisional compensation
and in hxing the definitive compensation He also requested that an arbitration panel
be set up in order to resolve the dispute between himself and the State However, none
of these requests met with success In particular, a Prime Ministenal Ordinance of
5 January 1989 decided not to accede to his request for an arbitration panel to be set
up ' in view of the publication of Decree Law No 199/88"
As early as 12 July 1991, the applicant requested the Mmister of Agriculture to
fix the definitive compensation in accordance with Decree-Laws Nos 199/88 and
199/91
On 21 June 1996, the Ministry of Agriculture sent the applicant an offer of
definitive compensation, asking him for his comments The compensation was assessed
at PTE 143.659,000 (approMmdiely FRF 4,788,630)
123The applicant submitted his comments on this offer on 17 July 1996, drawing.
inter alia, the attention of the relevant department to a number of inaccuracies in it
To date, no final offer has tx;en made
B
Relevant domestic law and practice
On 26 October 1977, the Portuguese Pdrliament enacted Law No 80/77 on the
compensation pa>dble to the fomier owners of nationalised or expropnated property
The compensation was to be assessed, first provisionally and later definitively and,
according to section 19 of this Law. was to be paid in the form of National Debt
securities, which would be redeemed over a number of years and which would carry
predetermined rates of interest set out in an appendix to the Law For sums over
PTE 6.050,000, the redemption [jenod was to be 23 years (after an initial penod of five
years in which there would be no redemption) at an annual rate of interest of 2 5%
Under section 13 (3) of the Law, sums paid by way of provisional compensation were
to be considered as an advance on the definitive compensation, so that the recipient
could be required to repay the State the amount of the provisional compensation if
definitive compensation was found not to be due or turned out to be lower than tlie
amount paid in provisional compensation
On 31 May 1988, the Government adopted Decree Law No 199/88 on the
application of the general principles set out in Law No 80/77 to the nationalisations
CiU-ried out under the agrarian refurm policv Tuo Decree-Laus. No 199/91 of 29 Ma>
1991 and No 38/95 of 14 Febiuary 1995, made certain amendments to Decree-Law
No 199/88. laying down new cntena for calculating the compensation and modifying
the procedure relating thereto Thus, Decree Law No 38/95 provided for the
com()ensation to be assessed by the Ministers ot Finance and Agriculture on the basis
of a proposal from the relevant government departments (the regional offices of the
Ministry of Agriculture) These legislative instruments were silent as regards a right ol
appeal for the interested parties, although administrative law provides for the possibility
of challenging a ministerial decision before the Supreme Administrative Court
The Constitutional Court examined the question whether the system for paying
compensation ansing out of nationalisation or expropriation was compatible with the
Portuguese Constitution in its judgment No 39/88 of 9 February 1988 In relation to
the time Liken by the authorities to pay the compensation, the court held as follows
certainly, all this [the payment of the compensation! took place after a
considerable delay from the date of the nationalisations That it could be
argued - is capable of constituting a violation of the compensation pnnciple set
out in Article 82 of the Constitution However, such an argument would not be
correct If such a situation is capable of constituting a breach of the right to
compensation in that that right may become uncertain and thus lacking in
substance - ihe source of that breach will be, not a Haw in the legislative
provisions at issue here but rather the inaction or lack of diligence of the
124Government And if perchance such conduct on the Government's pan occurred
because there was no legal means of bringing about the effective application of
those legislative provisions and, consequently, enforcing, in practice, the nghl
enshrined in Article 82 of the Constitution, then any unconstitutionality would
be an unconstitutionality by omission
1Invoking Article 1 of Protocol No 1, the applicant complains of an unjustified
breach of his nght to peaceful enjoyment of his possessions in that he has received no
definitive compensation for the expropriation of his land despite the fact that twenty
years have elapsed since tliat expropnation He claims to be faced with a continuing
situation against which he has no remedy
2Invoking Articles 6, 13 and 17 of the Convention, the applicant complains that
there is no mechanism in Portuguese law capable of remedying his situation Given that
the judiciary has declared that it lacks jurisdiction the executive refers the individual
concerned to the courts and the legislature fails authoritatively to define the cntena for
awards of compensation, all the indications are that the situation complained of will
continue, without the applicant being compensated
1 HE LAW (Extract)
1Invoking Article 1 of Protocol No 1, the applicant complains of an unjustified
breach of his nght to peaceful enjoyment of his possessions in ihat he has received no
definitive compensation for the expropriation of his land despite the fact that twenty
years have elapsed since that expropriation He claims to be faced with a continuing
situation against which he has no remedy and invokes Article 1 of Protocol No 1,
which provides
'1
Every natural or legal person is entitled to the peaceful enjoyment of his
possessions No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general
pnnciples of international law
The preceding provisions shall not, however, in any way impair the nght of a
State to enforce such laws as it deems necessary to control the use of property
in accord in<.e with the general interest or to secure the payment of taxes or other
contributions or penalties
ground that the application is inadmissible ratione tempons
125Government, the Commission has no jurisdiction to examine the applicant's complaints
about (he relevant nationalisations, since they took place in 1975 - that is, before
Portugal ratified the Convention and Protocol No. I on 9 November 1978. Refemng
to the ca^e-ljw of (he Convention organs, the Government emphasise that a deprivation
of property is an instantaneous ACt which does not create a continuing situation of
"depnvation of nght"
The applicant contests this argument, claiming that the act of depnvaiion of
propertv does not cease until the compensaUon due is paid In his case, such
compensation has neiiher been fixed nor paid, despite the fact thai the Government has
recognised in the relevant legislation that the applicant is entitled lo such compensation
The Commission emphasises at the outset that the Portuguese Government
acknowledgfd, at the time of the expropriafions themselves, that the former landowners
were entitled lo compensation. For his part, the applicant is complaining, not about the
deprivation of property, which is incontestably an instantaneous act, bul about the lack
of definitive compensation, a situation which still subsists today. The inevitable
conclusion is that he is faced with a continuing situanon (cf Eur Court HR,
Papamichalopoulos v, Greece judgment of 24 June 1993, Series A no 260, p 69,
para. 4(1) Therefore, the preliminary objection on the grounds of incompatibility ratione
tempore must be rejected,
domestic remedies They emphasise, firstly, that the applicant will be able to apply to
the Supreme Administrative Court to quash the ministerial decision fixing the amount
of the compensation Secondly, the Government claim that the applicant could have
brouphi an action in the adminisiruiive courts on the basis of the tortiou'- liability of the
Stale for the delay in paying dehniiive compensation The Governmeni assen thai the
proceedings which the applicant brought in the administralive courts weje nol sufficient
to remedy the complaints which he is raising before the Commission
The applicant contests these arguments, claiming that in Portugal ihere is no
domestic legal mechanism whereby to obtain redress for loss or damage suffered as a
result of Ihe delay in the payment of Ihe relevant compensation. On Ihis point, he refers
to the relevani judgments of the Supreme Court and the Supreme Administrative Court.
The Commission recalls that the only remedies which Article 26 of the
Convention requires to be exercised are those that are both available and sufficient in
respect of (he violation alleged (Eur. Court HR, Dewccr v. Belgiutn judgment of
27 February 1980, Series A no 35, p. 16, para 29). Moreover, the buiden of proving
the existence of effective and sufficient domestic remedies lies upon the State invoking
the rule (No 23413/94. Dec 28 11.95, D.R. 83, p. 31).
As regards the first limb of the Government's preliminary objection, the
effective in that it cannot be used until Ihe Government have fixed the definitive
126com[>ensanon, whereas the applicant is complaining precisely about the fact that no
such comfKnsation has been fixed With regard to the second limb of the preliminary
objection, the Commission emphasises that the applicant did apply to the administrafive
courts, raising, in substance, the complaints which he has submitted to the Commission,
but that those courts declared that they had no jurisdiction to examine his complaints.
In the Commission's opinion, it would be excessive to require the applicant to bring
a further acUon against the Slate in tort - which, moreover, appears unlikely to be
effective. Finally, the Commission notes that the Government have not submitted
{despite being invited to do so) any authoritative decision of a Portugu&se court
recognising a right to compensation for the delay to date in the payment of compensaUon arising out of the agrarian reform, despite the fact that this situation has existed for
more than twenty years It therefore appears that the applicant is faced with a
continuing situafion against which he has no remedy. Hence, the Government's
preliminary objection of non-exhaustion must be rejected
grounds that the six-month rule has not been complied with. According lo them, if
domestic remedies are held to have been exhausted, the final domestic decision would
be the Supreme Administrative Court's judgment of 28 March 1995, which would mean
that the application was introduced out of time.
The applicant claims that he had to await the decision on his appeal to the
Constitutional Court in his action in the civil courts before applying to the Commission
The last decision of the Constitutional Court was given on 6 July 1995, so that his
application was not out of time
The Commission recalls that the six-month rule does not apply as long as a
continuing situation lasts, which is the case here (see No 11123/84, Dec 9.12 87
rejected
127
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