Portugal: State Liability for Judicial Delay

Law no. 67/2007 of 31 December, the regime of non-contractual civil liability of the State, allows an action for damage caused in the exercise of the judicial function — expressly including delay in delivering a decision. It is brought before the administrative courts, and it is the remedy the Court expects a Portuguese applicant to have attempted.

A remedy that exists in law is not automatically effective in practice. The Court has examined the Portuguese mechanism on exactly that basis, looking at whether domestic case-law was settled and whether awards were paid within a reasonable time — Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, judgment of 10 June 2008. Effectiveness is assessed as it operates, not as it is drafted.

For a creditor the ceiling shows up in two places: a domestic award materially below Strasbourg standards, and an action for delay that itself takes years to resolve.

• A different quantum

  Where the domestic award falls significantly short of what the Court would consider appropriate, victim status can survive it.

• Supervised execution

  Payment of a Strasbourg award is monitored by the Committee of Ministers. A domestic award is monitored by the creditor.

• The property dimension

  The domestic action is framed around delay. Strasbourg also allows the unpaid judgment debt to be argued as an interference with possessions.

The domestic liability action is built for proceedings that took too long. A creditor holding a final judgment that a public body is simply not paying has a related but distinct grievance: the process finished, and the result was ignored. Framing the second as though it were the first is a common and costly simplification.

It matters for exhaustion. If the domestic remedy is not capable of redressing non-execution as such, insisting on it may add years without improving the Strasbourg position. If it is capable, skipping it is fatal. That assessment has to be made on the specific facts, and it is the part of a Portuguese file we spend most time on.

The domestic action comes first, and the file should be built from the outset for the possibility that it will not be enough. That means preserving the record of the delay, the enforcement attempts and the sums involved in a form that transfers to a Strasbourg application without reconstruction.