In today’s Grand Chamber judgment in the case Perdigão v. Portugal (application no 24768/06), which is final , the European Court of Human Rights held, by fourteen votes to three, that there had been:
A violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights.
The Court held, by 14 votes to three, that Portugal was to pay the applicants EUR 190,000 in respect of pecuniary and non-pecuniary damage.
Principal facts
The applicants, João José Perdigão and Maria José Queiroga Perdigão, are Portuguese nationals who were born respectively in 1932 and 1933 and live in Lisbon.
A piece of land measuring nearly 130,000 m² which they owned was expropriated in 1995 to build a motorway. As Mr and Mrs Perdigão did not agree with the authorities on the amount of compensation to be paid to them, an arbitration committee decided they were to be given 177,987.17 euros (EUR) for the expropriated land. Mr and Mrs Perdigão appealed against that decision in March 1997, claiming that they were entitled to receive over EUR 20 million in compensation, in exchange for their land and the potential profit they could have made by exploiting a quarry which existed on it. Subsequent expert assessments valued the land and the potential profit from the quarry at about EUR 4 million and EUR 9 million respectively.
In June 2000, the court rejected Mr and Mrs Perdigão’s claim as it found that the potential profits from the quarry should not be taken into account. The court thus set, in June 2000, the compensation at just over EUR 197,000 and, in April 2005, the court fees at just over EUR 300,000. Once the compensation awarded to the applicants had been deducted, they still owed the State EUR 111,816.46. Following a claim submitted by the applicants to the Constitutional Court, in September 2007 it declared unconstitutional the provision of the then Court Fees Code, as interpreted by the lower courts, as it found that the sum, which the applicants were asked to pay, was large enough to have affected their right of access to a court. As the Constitutional Court did not decide on the amount of court fees finally owed by Mr and Mrs Perdigão, they turned to the appeal court for clarification. In January 2008, the appeal court decided, without giving reasons, that the court fees Mr and Mrs Perdigão owed should not exceed the compensation they were awarded by more than EUR 15,000.
As a result, not only did the amount awarded in compensation eventually revert to the State, but the applicants had to pay another EUR 15,000, which they did in February 2008.
Decision of the Court
Article 1 of Protocol No. 1
Applicability to applicants’ complaint
The Court first noted that the applicants’ complaint concerned the way in which the Portugese law regulations governing court fees had been applied in their case. It then confirmed the Chamber’s finding that court fees had to be considered “contributions”, under Article 1 of Protocol No 1, which the State was entitled to collect in accordance with its own legislation.
Examining the question of whether Mr and Mrs Perdigão’s obligation to pay the court fees had been an interference with their right to the peaceful enjoyment of their possessions, protected under paragraph 1 of Article 1 of Protocol No 1, the Court decided to examine their application under Article 1 of Protocol No 1 taken as a whole.
Compliance of authorities’ actions
The Court reiterated that for a measure to be compatible with Article 1 of Protocol No 1, it had to be lawful and not arbitrary. In addition, a fair balance had to be struck between the general interests of the community and the individual’s fundamental right to protection of their property. The fair balance requirement meant that there always had to be a reasonable relationship of proportionality between the means employed by the authorities and the aim they pursued. If an individual had been made to bear an excessive burden as compared to the general interests of the community, the balance would not have been achieved. Notwithstanding the above, the Court held that, in general, States enjoyed a wide margin of appreciation, both in respect of the way they chose to interfere with someone’s property rights and of assessing whether the consequences of their interference had been justified under Article 1 of Protocol No 1.
The Court then observed that the applicants had seen the compensation awarded to them be fully absorbed by the court fees they had been asked to pay in the court proceedings in which they had contested the compensation. That had happened as a consequence of them having been deprived of their property. Having been awarded compensation in exchange for the expropriation of their land, Mr and Mrs Perdigão had received nothing as a result of the amount which the Portugese courts had asked them to pay in court fees. Further, the applicants had paid an additional EUR 15,000 to the State on the basis of the national court’s decision.
The Court noted that, while its task was not to examine the Portugese method of calculating and fixing court fees, it had to consider how that method had been applied in Mr and Mrs Perdigão’s case. It found that, clearly, the intended outcome of protecting the applicants’ property rights while expropriating their land had not been achieved, as they had had to pay to the State EUR 15,000 in addition to losing their land.
The Court further remarked that it might appear paradoxical that a State should take away with one hand – in court fees – more than it had awarded with the other. While there was a difference in the legal nature of the obligation for the State to pay compensation for expropriation and the obligation of litigants to pay court fees, that was not an obstacle for the Court to examine - under Article 1 of Protocol No 1 - the question of whether the amount of court fees Mr and Mrs Perdigão had to pay had been proportionate to the authorities’ aim to expropriate their land in exchange for due compensation.
The Court then noted that, according to Portugese legislation, by claiming a large sum the applicants had risked being asked to pay high court fees. However, their conduct or the procedural activity set in motion could not justify the imposition of such high court fees, especially in relation to the amount they had been awarded as compensation for the expropriation of their land.
Accordingly, Mr and Mrs Perdigão had had to bear an excessive burden and that had upset the fair balance which the Portugese authorities had had to strike between the general interests and the fundamental property rights of the applicants.
There had, therefore, been a violation of Article 1 of Protocol No 1.
Article 41
Under Article 41 (just satisfaction), the Court held, by 14 votes to three, that Portugal was to pay the applicants EUR 190,000 in respect of pecuniary and non-pecuniary damage.
Separate opinions
Judges Ziemele and Villiger expressed a joint concurring opinion. Judges Lorenzen, Casadevall and Fura expressed a joint dissenting opinion. These opinions are annexed to the judgment.
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